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Wood and his 29-year-old ex-girlfriend, Debbie Dietz, had been involved
in a turbulent relationship for 5 years, which had been marred by
numerous breakups and several domestic violent incidents.

Dietz tried to end their relationship and got an
order of protection against Wood. Debbie was working at a local body
shop owned by her family.

On August 7, 1989, Wood walked into the shop. waited
for her father, Gene Deitz, to hang up the phone, then shot him in the
chest with a .38 caliber revolver, killing him. Wood approached Debbie,
placed her in some type of hold, and shot her once in the abdomen and
once in the chest, killing her.

Wood then fled the building. Two police officers
approached Wood and ordered him to drop his weapon. After Wood placed
the weapon on the ground, he reached down and picked it up, and pointed
it at the officers. The officers fired, striking him several times. Wood
survived his wounds after extensive surgery.

Wood looked at the victim's family as he delivered his final words,
saying he was thankful for Jesus Christ as his savior. At one point, he
smiled at them, which angered the family. "I take comfort knowing today
my pain stops, and I said a prayer that on this or any other day you may
find peace in all of your hearts, and may God forgive you all."

Final / Special Meal:

Wood chose not to have a special "last meal" Tuesday night, instead
eating the sausage and mashed potatoes that the rest of the prisoners
were served.

Wood and his 29-year-old ex-girlfriend, Debbie Dietz,
had been involved in a turbulent relationship for 5 years, which had
been marred by numerous breakups and several domestic violent incidents.
Debbie was working at a local body shop owned by her family. On August
7, 1989, Wood walked into the shop and shot Gene Dietz, age 55, in the
chest with a .38 caliber revolver, killing him. Gene Dietz's 70-year-old
brother was present and tried to stop Wood, but Wood pushed him away and
proceeded into another section of the body shop. Wood went up to Debbie,
placed her in some type of hold, and shot her once in the abdomen and
once in the chest, killing her. Wood then fled the building. Two police
officers approached Wood and ordered him to drop his weapon. After Wood
placed the weapon on the ground, he reached down and picked it up, and
pointed it at the officers. The officers fired, striking Wood several
times. Wood was transported to a local hospital where he underwent
extensive surgery.

Lethal injection was invented in the United States in
1977. States at that time used an anesthetic called thiopental in
combination with other drugs. But in 2010, a shortage of thiopental left
states scrambling to obtain deadly drugs. Arizona Republic reporter
Michael Kiefer, through use of public-records laws and wide-ranging
reporting, documented that Arizona and other states had obtained
supplies improperly until their source was cut off, then switched to the
barbiturate pentobarbital. But pentobarbital manufacturers soon put in
place sales controls to avoid its use for executions. Some halted
because assisting in executions is prohibited by European law. And some
just didn't want to be known as a company that sells drugs that kill
people. By the end of 2013, pentobarbital also became unavailable for
executions.

Since then, death-penalty states have been scrambling
to come up with alternatives. Some have turned to compounding pharmacies
to custom-make pentobarbital; others have turned to midazolam, a drug
related to Valium. Executions carried out with midazolam in Florida,
Ohio and Oklahoma suggested that the drug worked less quickly and less
efficiently in putting people to death than thiopental or pentobarbital.
When Arizona announced that it would use midazolam in combination with
the narcotic hydromorphone to execute double-murderer Joseph Rudolph
Wood, Wood's attorneys fought to the U.S. Supreme Court. The execution
took place Wednesday. Kiefer was a news-media witness. What follows is
his account of what he saw.

The first glimpse was from above, framed by two
closed-circuit TVs. Joseph Rudolph Wood was strapped to a gurney in an
orange jumpsuit as prison medical staff prepared to set intravenous
lines in his arms. It was 1:30 in the afternoon at Housing Unit 9, the
small, one-story, free-standing stucco building where executions are
carried out at the Arizona Prison Complex-Florence. The viewing room is
15 feet by 12 feet, painted in calming tones of blue, with three rows of
risers that climb from the big window that looks into the
lethal-injection chamber in front to the bay windows of the gas chamber
behind. Federal law requires that witnesses to executions see every
phase, including the setting of IV lines. But in Arizona, it's done on
camera.

Wood's eyes flitted back and forth, and his eyebrows
arched as men in scrubs, their faces out of camera range, fussed with
blood-pressure cuffs and trays of IV needles. The lines went in easily.
They don't usually; Arizona is one of three states that will surgically
cut a catheter into a condemned man's groin after failing to find veins
in the arms or hands, a process used in nine of the past 14 executions.
Then, the curtains opened.

According to Arizona Republic reporter Michael
Kiefer, Wood was unconscious by 1:57 p.m.. At about 2:05, he started
gasping. Wood turned his head and looked curiously at the 20 or so
witnesses in the room. He found the family of his victims, the sisters
and brother-in-law of Debra Dietz, the estranged girlfriend he killed,
along with her father, Eugene, in Tucson in 1989. He grinned, seemed to
laugh at them and jerked his head back to look at the ceiling. Next to
me, Wood's chaplain, a priest in a collar, counted beads on a rosary.
His lips moved silently in prayer. Three of Wood's attorneys sat behind
him.

Wood pronounced his last words: There was no apology
to the family, only a statement about how he had found Jesus, who he
hoped would forgive them all. "Are those your last words?" the warden
asked. "Yes, sir." It was 1:54. The drugs had already begun to flow
through the IVs. The execution had begun.

This was the fifth execution I've witnessed. They
don't look like much. The condemned person usually wears an expression
of dumbfounded embarrassment and stares absurdly at the ceiling. Then,
his eyes close slowly and he stops moving, except for a few
chest-raising breaths that slow and then stop. The face slackens, the
mouth gapes. It's usually over in 10 or 11 minutes. Wood's execution was
no different — at first. Maybe he was smiling, but just slightly. He
took a few gulps of air and closed his eyes. The priest stopped praying
and watched

Four minutes into the procedure, the doctor appeared
on the other side of the window. He checked Wood's eyes and pulse and
then said over the microphone, "It is confirmed that he is sedated."
There had been concern about the drugs used in this execution, a
cocktail of the Valium-like midazolam and a narcotic called
hydromorphone. Witnesses to an execution in Florida, where the drug was
used last October, noted that it seemed to take longer than usual. An
Ohio execution in January took more than 20 minutes and death-penalty
attorneys claimed that was too long.

Wood's attorneys filed motions in state and federal
courts expressing concerns over the drugs and the Arizona Department of
Corrections' refusal to provide information about the specific batches
of the drugs that it had obtained. The execution was stayed twice. The
first stay was lifted Tuesday by the U.S. Supreme Court. A second stay
was imposed Wednesday morning, which pushed the execution back from 10
a.m. to 1 p.m. The Arizona Supreme Court lifted it before noon
Wednesday. At the start of Wood's execution, none of those concerns
seemed warranted.

Then at 2:05, Wood's mouth opened. Three minutes
later it opened again, and his chest moved as if he had burped. Then two
minutes again, and again, the mouth open wider and wider. Then it didn't
stop. He gulped like a fish on land. The movement was like a piston: The
mouth opened, the chest rose, the stomach convulsed. And when the doctor
came in to check on his consciousness and turned on the microphone to
announce that Wood was still sedated, we could hear the sound he was
making: a snoring, sucking, similar to when a swimming-pool filter
starts taking in air, a louder noise than I can imitate, though I have
tried. It was death by apnea. And it went on for an hour and a half. I
made a pencil stroke on a pad of paper, each time his mouth opened, and
ticked off more than 640, which was not all of them, because the doctor
came in at least four times and blocked my view. I turned to my friend
Troy Hayden, the anchor and reporter from Fox 10 News, who was sitting
next to me. Troy and I witnessed another execution together in 2007, and
he had seen one before that, so he also knows what it looks like. "I
don't think he's going to die," I said. A moment later, Troy turned to
me and whispered, "I think you're right."

The priest laid a crucifix at the end of the rosary
on the bench and stared into the face of Jesus. I wondered if there were
a Plan B, some other dose of drugs, something to speed up the death. Or
someone to stop it. In fact, as Wood was drowning in air, two of his
attorneys left the room. I later learned they had filed motions to try
to get the execution stopped. Finally, Wood started to gasp less
frequently. Once, twice, minutes apart; he stopped at 3:36. At 3:40 and
3:48, the doctor examined him and pronounced him "still sedated."

A minute later, Arizona Department of Corrections
Director Charles Ryan appeared in the window next to Wood's gurney, like
some kind of narrator. It was like a scene featuring the stage manager
in Thornton Wilder's play, "Our Town." Or maybe like Rod Serling in
"Twilight Zone." The execution had been completed, he said. The curtains
closed. The witnesses filed out. One of Wood's lawyers said, "The
experiment failed."

Execution of Arizona murderer takes nearly 2 hours

By Bob Ortega, Michael Kiefer and Mariana Dale -
AZcentral.com

July 24, 2014

The controversial drug that Arizona used to execute
double-murderer Joseph Rudolph Wood on Wednesday took nearly two hours
to kill him and left him snorting and gasping for breath. One reporter
who witnessed the execution, Troy Hayden of Fox 10 News, said it was
"very disturbing to watch ... like a fish on shore gulping for air. At a
certain point, you wondered whether he was ever going to die." State
officials and the victims' families, however, took issue with other
witness descriptions, saying that Wood was not conscious after the first
few minutes and that the noises he made sounded like snoring. According
to Arizona Republic reporter Michael Kiefer, Wood was unconscious by
1:57 p.m.. At about 2:05, he started gasping.

Richard Brown claimed the media had more compassion
for a convicted killer then the victim. Arizona Attorney General Tom
Horne declined to comment. His spokeswoman, Stephanie Grisham, disputed
that Wood snorted or gasped for air. "He went to sleep and appeared to
be snoring," she said. "This was my first execution, and I was surprised
at how peaceful it was." Wood was sentenced to death for the 1989
murders of his ex-girlfriend, Debra Dietz, and her father, Eugene Dietz.

The victims' family members said the media were wrong
to focus on the execution method rather than on the victims. "Everybody
here said it was excruciating," said Jeanne Brown, Debra Dietz's sister.
"You don't know what excruciating is. Seeing your dad lying there in a
pool of blood, seeing your sister lying there in a pool of blood, that's
excruciating." Her husband, Richard Brown, who said he witnessed the
murders, said, "What I've seen today, you guys are blowing this all out
of proportion about these drugs. "Why didn't we give him a bullet? Why
didn't we give him some Drano? These people that are on death row, they
deserve to suffer a little bit."

Across the country, a majority of Americans support
the death penalty, but that support appears to be waning. A 2013 Pew
Research Center survey indicated that 55 percent of U.S. adults favor
the practice, while 37 percent oppose it, a big drop from two years
earlier, when 62 percent said they favored the death penalty for murder
convictions and 31 percent opposed it. Wednesday's execution began at
1:53 p.m., after Wood's last words, in which he thanked his attorneys,
said he had found Christ and concluded, "May God forgive all of you."

According to Arizona Republic reporter Michael
Kiefer, who witnessed the execution, lines were run into each of Wood's
arms. Wood was unconscious by 1:57 p.m. At about 2:05, he started
gasping, Kiefer said. "I counted about 640 times he gasped," Kiefer
said. "That petered out by 3:33. The death was called at 3:49. ... I
just know it was not efficient. It took a long time."

The length of the process drew swift condemnation
from death-penalty critics. "The worst part about Joseph Wood's botched
execution was, it was entirely predictable and avoidable," Diann
Rust-Tierney, executive director of the National Coalition To Abolish
the Death Penalty, said in a statement noting that the same combination
of drugs had been used in a problematic execution in Ohio earlier this
year. That was echoed by the Arizona director of the American Civil
Liberties Union. "Arizona had clear warnings from Ohio and Oklahoma,"
said Alessandra Soler, executive director of the ACLU of Arizona,
calling for a moratorium on executions. "Instead of ensuring that a
similar outcome was avoided here, our state officials cloaked the plans
for Mr. Wood's death in secrecy."

"Appeals court judge argues for return of firing
squads."

The latest petition initially was filed in Pima
County Superior Court after a federal appellate court's stay was lifted
Tuesday by the U.S. Supreme Court. It argued that Wood had ineffective
assistance of counsel during his trial, and also challenged Arizona's
lethal-injection protocol and the drug cocktail used in executions. Pima
County Superior Court Judge Kenneth Lee dismissed Wood's first argument,
but sent the question of Arizona's lethal-injection protocol to the
state high court. On Tuesday, the U.S. Supreme Court had upheld
Arizona's veil of secrecy around its lethal-injection drugs, permitting
plans for the execution to proceed. The high-court ruling knocked down a
federal appeals court decision that the execution could not move forward
unless the state turned over information about how the execution would
be carried out.

Executions are public events. But in recent years,
many states that still have capital punishment, including Arizona, have
passed or expanded laws that shroud the procedures in secrecy. The
Arizona Department of Corrections planned to use a controversial drug,
and it favors a controversial method of administering it, so Wood's
attorneys demanded to know the qualifications of the executioners and
the origin of the drugs to be used in the execution, claiming that Wood
had a First Amendment right to the information. On Saturday, the 9th
U.S. Circuit Court of Appeals agreed. The state appealed to the U.S.
Supreme Court, which lifted the stay without addressing the First
Amendment issue.

State officials said in court filings that they need
to maintain secrecy because publicity has made it more difficult to
obtain the drugs needed to carry out executions. Drug manufacturers have
begun refusing to sell to departments of corrections, forcing the
departments to experiment with new and less reliable drugs or to
specially order them from compounding pharmacies, which in turn are
harassed by anti-death-penalty activists. "Prisoners who are sentenced
to death for their crimes have every right to know what drugs are going
to be used," said Stephanie Grisham, a spokeswoman for Arizona Attorney
General Tom Horne, "but it would be a bad matter of policy if the
manufacturer of these drugs were identified. The very reason we have a
new drug protocol is because of the pressure and threats applied to the
companies ... forcing them to stop making it."

It was not the first time the Supreme Court has ruled
against a stay of execution based on drug secrecy. In 2010, it ruled
against an Arizona prisoner asserting his right to know about
lethal-injection drugs that turned out to have been improperly obtained
from overseas. The U.S. District and Circuit Courts in Washington, D.C.,
later determined federal law had been violated, which the Arizona
Attorney General's Office denies. "In most respects, what Mr. Wood is
asking for is quite small," said Megan McCracken, a former federal
defender who works with the University of California-Berkeley Death
Penalty Clinic. "I think they don't want to set precedent about giving
out information, and they don't want to come under scrutiny."

Sen. Ed Ableser, D-Tempe, called the execution
barbaric and said: "This one is really on (Brewer's) shoulders. She can
sign an executive order, put a stay on executions and let the
Legislature find a better way to deal with violent criminals who deserve
the maximum penalty, but one that is not cruel and unusual." Dan
Peitzmeyer, president of Phoenix-based Death Penalty Alternatives, said,
"Actions like this might not cause us to totally repeal the death
penalty. But it should sure as hell cause us to bring a moratorium to it
and take a sincere look at what we're doing."

Executions by lethal injection using barbiturates
such as pentobarbital more typically take about 10 minutes. But the
European and American manufacturers refuse to supply it for executions.
With the drug unavailable for death penalties, Arizona became the latest
of four states to turn to another sedative, midazolam, first used for
execution less than a year ago. Arizona used it in combination with a
narcotic, hydromorphone. Midazolam, by itself or with hydromorphone, has
led to flawed, drawn-out executions in three other states. Wood's
attorneys had fought its use before the U.S. Supreme Court and then in a
last-minute appeal to the Arizona Supreme Court, saying the drug was
"experimental" and had not been proven to be effective.

Wood had been scheduled to die at 10a.m. Wednesday,
but the state Supreme Court halted the process to consider a last-minute
petition for post-conviction relief. The court lifted its temporary stay
shortly before noon, clearing the way for his execution later in the
day. Witnesses were told when the stay was issued to return by 1 p.m.
One day earlier, it was uncertain whether the execution would go
forward. Wood's attorneys had filed for a preliminary injunction to stop
the execution unless Arizona revealed where it had obtained the
midazolam and divulged the qualifications of the medical team that would
administer it.

In October and January, midazolam was used in
executions in other states. Both times, witnesses said that the
condemned prisoners appeared to gasp for breath and took longer to die
than with the barbiturates that were used until they became unavailable.
And in April, an Oklahoma inmate was executed using the drug, but the
medical person inserting the catheter into a groin artery completely
punctured it, sending the drug into the soft tissue beneath. The man
writhed in pain for more than 40 minutes before dying of an apparent
heart attack. Wood's attorneys asked for information with those
incidents in mind. A U.S. District Court judge denied a stay. But on
Saturday, the 9th U.S. Circuit Court of Appeals granted it, with the
condition that it would be vacated if the state turned over the
information. The Arizona Attorney General's Office appealed the 9th
Circuit ruling and the U.S. Supreme Court threw it out Tuesday
afternoon. Wood chose not to have a special "last meal" Tuesday night,
instead eating the sausage and mashed potatoes that the rest of the
prisoners were served.

In 1989, Wood was living with Debra Dietz, who
supported him and paid for the apartment they shared. But Wood was
abusive, and after Dietz moved out of the apartment, he stalked her. On
Aug. 7, 1989, Wood became enraged when Dietz wouldn't take his calls. He
went to the auto body shop where Dietz worked for her father. Eugene
Dietz was on the phone when Wood reached the body shop; Wood waited for
him to hang up and then shot him in the chest without saying a word.
Wood then hunted down Debra Dietz and shot her twice in the chest.

Arizona inmate takes nearly two hours to die in botched execution

By David Schwartz - Reuters.com

Jul 24, 2014

PHOENIX (Reuters) - An Arizona inmate took almost two
hours to die by lethal injection on Wednesday and his lawyers said he
"gasped and snorted" before succumbing in the latest botched execution
to raise questions about the death penalty in the United States. The
execution of convicted double murderer Joseph Wood began at 1:52 p.m. at
a state prison complex, and the 55-year-old was pronounced dead just shy
of two hours later at 3:49 p.m., the Arizona attorney general's office
said.

During that time, his lawyers filed an unsuccessful
emergency appeal to multiple federal courts that sought to have the
execution halted and their client given life-saving medical treatment.
The appeal, which said the procedure violated his constitutional right
to be executed without suffering cruel and unusual punishment, was
denied by Justice Anthony Kennedy of the U.S. Supreme Court. "He gasped
and struggled to breathe for about an hour and 40 minutes," said one of
Wood's attorneys, Dale Baich. "Arizona appears to have joined several
other states who have been responsible for an entirely preventable
horror: a bungled execution. The public should hold its officials
responsible."

Arizona Governor Jan Brewer expressed concern over
how long the procedure took and ordered the state's Department of
Corrections to conduct a full review, but said justice had been done and
that the execution was lawful. "One thing is certain, however, inmate
Wood died in a lawful manner and by eyewitness and medical accounts he
did not suffer," the Republican governor said in a statement. "This is
in stark comparison to the gruesome, vicious suffering that he inflicted
on his two victims, and the lifetime of suffering he has caused their
family."

An Arizona Republic journalist who witnessed the
execution said he counted the inmate gasping for breath about 660 times.
"I just know it was not efficient," said the reporter, Michael Kiefer.
"It took a long time."

DRAWN-OUT DEATH

Charles Ryan, director of Arizona's Department of
Corrections, said protocol was followed and that the execution was
monitored by a team of licensed medical professionals. He said Wood was
"fully and deeply sedated" five minutes after the drugs began to be
administered, and that the medical team reaffirmed that he remained
deeply sedated seven more times before he was pronounced dead. Ryan said
in a statement that apart from snoring, Wood "did not grimace or make
any further movement."

The Pima County Medical Examiner will conduct an
independent autopsy, he said, and a toxicology study was requested too.
Wood had been one of six death row prisoners who sued Arizona last month
arguing that secrecy surrounding the drugs used in other botched
executions in Ohio and Oklahoma violated their rights. But he exhausted
his appeals on Wednesday when the Arizona Supreme Court lifted a hold
after reviewing a last-minute appeal that involved demands for more
information about the lethal drug cocktail to be used in the execution.
Wood's lawyers had also wanted to know the qualifications of the medical
staff conducting the execution.

Anti-death penalty campaigners expressed horror over
the drawn-out death. Cassandra Stubbs, director of the American Civil
Liberties Union's Capital Punishment Project, said Arizona had broken
constitutional rights, and the bounds of basic decency. "It's time for
Arizona and the other states still using lethal injection to admit that
this experiment with unreliable drugs is a failure," she said in a
statement. Diann Rust-Tierney, executive director of the National
Coalition to Abolish the Death Penalty, said Wood's execution had been
shocking, cruel and entirely predictable. "Americans have had enough of
the barbarism," she said.

In January, convicted rapist and murderer Dennis
McGuire was put to death in Ohio using a sedative-painkiller mix of
midazolam and hydromorphone, the first such combination administered for
a lethal injection in the United States. The execution took about 25
minutes to complete, with McGuire reportedly convulsing and gasping for
breath. In Oklahoma in April, convicted killer Clayton Lockett writhed
in pain and a needle became dislodged during his lethal injection at a
state prison. The execution was halted, but Lockett died about 30
minutes later of a heart attack.

Doctor: Injection lines placed correctly in inmate

Tucson.com

PHOENIX (AP) — Intravenous lines were placed
correctly during the execution of an Arizona inmate whose death with
lethal drugs took more than 90 minutes, a medical examiner said Monday.
Incorrect placement of lines can inject drugs into soft tissue instead
of the blood stream, but the drugs used to kill Joseph Woods went into
the veins of his arms, said Gregory Hess of the Pima County Medical
Examiner's Office. Hess also told The Associated Press that he found no
unexplained injuries or anything else out of the ordinary when he
examined the body of Woods, who gasped and snorted Wednesday more than
600 times before he was pronounced dead.

An Ohio inmate gasped in similar fashion for nearly
30 minutes in January. An Oklahoma inmate died of a heart attack in
April, minutes after prison officials halted his execution because the
drugs weren't being administered properly.

Hess said he will certify the outcome of Woods'
execution as death by intoxication from the two execution drugs — the
sedative midazolam and the painkiller hydromorphone — if there is
nothing unusual about whatever drugs are detected in Wood's system.
Hess' preliminary findings were reported previously by the Arizona
Capitol Times (http://bit.ly/1thLaFe ). Toxicology results are expected
in 4 to 6 weeks from an outside lab. Hess is chief deputy medical
examiner for Pima County, which conducts autopsies for Pinal County,
where the prison is located.

Wood was sentenced to death for the 1989 killings of
his estranged girlfriend, Debbie Dietz, and her father, Gene Dietz. Wood
was the first Arizona prisoner to be killed with the drug combination.
Anesthesiology experts have said they weren't surprised the drugs took
so long to kill him. Arizona and other death-penalty states have
scrambled in recent years to find alternatives to drugs used previously
for executions but are now in short supply due to opposition to capital
punishment. Arizona Gov. Jan Brewer has ordered the Corrections
Department to conduct a review of the execution of Wood.

As inmate died,
lawyers argued whether he was in pain

TucsonNewsNow.com

July 24, 2014

FLORENCE, Ariz. (AP) - The nearly two-hour execution
of a convicted murderer prompted a series of phone calls involving the
governor's office, the prison director, lawyers and judges as the inmate
gasped for more than 90 minutes. They discussed the brain activity and
heart rate of Joseph Rudolph Wood, who was gasping over and over as
witnesses looked on. The judge was concerned that no monitoring
equipment showed whether the inmate had brain function, and they talked
about whether to stop the execution while it was so far along.

But the defense lawyers' pleading on the grounds that
Wood could be suffering while strapped to a gurney, breathing in and out
and snoring, did no good. Nearly two hours after he'd been sedated
Wednesday, Wood finally died. A transcript of an emergency court hearing
released Thursday amid debate over whether the execution was botched
reveals the behind-the-scenes drama and early questions about whether
something was going wrong.

Department of Corrections Director Charles Ryan read
a statement Thursday outside his office dismissing the notion the
execution was botched, calling it an "erroneous conclusion" and "pure
conjecture." He said IV lines in the inmate's arms were "perfectly
placed" and insisted that Wood felt no pain. But he also said the
Arizona attorney general's office will not seek any new death warrants
while his office completes a review of execution practices. He didn't
take questions from reporters.

Defense lawyer Dale Baich called it a "horrifically
botched execution" that should have taken 10 minutes. U.S. District
Judge Neil V. Wake convened the urgent hearing at the request of one of
Wood's attorneys, notified by her colleagues at the execution that
things were problematic. A lawyer for the state, Jeffrey A. Zick,
assured Wake that Wood was comatose and not feeling pain. He spoke to
the Arizona Department of Corrections director on the phone and was
given assurances from medical staff at the prison that Wood was not in
any pain. Zick also said the governor's office was notified of the
situation.

Zick said that at one point, a second dose of drugs
was given, but he did not provide specifics. The participants discussed
Wood's brain activity and heart rate. "I am told that Mr. Wood is
effectively brain dead and that this is the type of reaction that one
gets if they were taken off of life support. The brain stem is working
but there's no brain activity," he said, according to the transcript.
The judge then asked, "Do you have the leads connected to determine his
brain state?" The lawyer said he didn't think so. "Well if there are not
monitors connected with him, if it's just a visual observation, that is
very concerning as not being adequate," the judge said.

Wood died at 3:49 p.m., and judges were notified of
his death while they were still considering whether to stop it. Zick
later informed the judge that Wood had died. Anesthesiology experts say
they're not surprised that the combination of drugs took so long to kill
Wood. "This doesn't actually sound like a botched execution. This
actually sounds like a typical scenario if you used that drug
combination," said Karen Sibert, an anesthesiologist and associate
professor at Cedars-Sinai Medical Center. Sibert was speaking on behalf
of the California Society of Anesthesiologists. Sibert said the sedative
midazolam would not completely render Wood incapacitated. If he'd felt
pain or been conscious, he would have been able to open his eyes and
move, she said. The other drug was the painkiller hydromorphone. "It's
fair to say that those are drugs that would not expeditiously achieve
(death)," said Daniel Nyhan, a professor and interim director at the
anesthesiology department at Johns Hopkins medical school.

But the third execution in six months to appear to go
awry rekindled the debate over the death penalty and handed potentially
new evidence to those building a case against lethal injection as cruel
and unusual punishment. An Ohio inmate gasped in similar fashion for
nearly 30 minutes in January. An Oklahoma inmate died of a heart attack
in April, minutes after prison officials halted his execution because
the drugs weren't being administered properly.

Arizona Gov. Jan Brewer said later that she was
ordering a review of the state's execution process, saying she's
concerned by how long it took for the drug protocol to kill Wood. Family
members of Wood's victims in a 1989 double murder said they had no
problems with the way the execution was carried out. "This man conducted
a horrific murder and you guys are going, 'let's worry about the
drugs,'" said Richard Brown, the brother-in-law of Debbie Dietz. "Why
didn't they give him a bullet? Why didn't we give him Drano?"

Arizona uses the same drugs that were used in the
Ohio execution. A different drug combination was used in the Oklahoma
case. States have refused to reveal details such as which pharmacies are
supplying lethal injection drugs and who is administering them out of
concerns that the drugmakers could be harassed. Wood filed several
appeals that were denied by the U.S. Supreme Court. Wood argued he and
the public have a right to know details about the state's method for
lethal injections, the qualifications of the executioner and who makes
the drugs. Such demands for greater transparency have become a legal
tactic in death penalty cases.

Wood was convicted of fatally shooting Dietz, 29, and
her father, Gene Dietz, 55, at their auto repair shop in Tucson.

The inmate's lawyers appealed to state and federal
courts to issue an order to resuscitate Wood as he reportedly gasped on
the gurney on Wednesday An hour into Joseph Wood’s execution, as the
condemned prisoner gasped for air and struggled to breathe, Wood’s
attorneys were filing motions in federal district court and the state
supreme court in an attempt to get an order to resuscitate the death-row
inmate as he lay on the gurney. “We were arguing that he was still
alive, that we did not know his level of sedation, and that he was still
breathing,” says Dale Baich, one of Wood’s attorneys, who witnessed
Wednesday’s prolonged execution.

Wood’s lethal injection, almost two hours long, is
the third execution this year widely considered “botched,” raising new
questions surrounding the efficacy of the method as state officials once
again pledge an investigation into why it went awry. Wood’s lawyers
attempted to get a stay for his execution, based initially on First
Amendment grounds that Wood, convicted of murdering his ex-girlfriend
and her father in 1989, had a right to know the origins of the execution
drugs being used. The U.S. Ninth Circuit Court of Appeals sided with
Wood and issued a stay, but the Supreme Court lifted it. In a
last-minute appeal, Wood’s attorneys argued that the drugs posed a risk
of violating the Eighth Amendment’s ban on cruel and unusual punishment,
but the Arizona Supreme Court failed to grant a stay.

At 1:52 p.m. on Wednesday, Wood was led into the
execution chamber and strapped to the gurney. Midazolam, a sedative, and
hydromorphone, used to halt breathing, were administered. About five
minutes into the process, Baich says, a medical-team member came into
the chamber and announced that Wood was unconscious. But his condition
soon changed. “About two or three minutes later, I noticed his lips
moved slightly,” Baich says. “And then two minutes after that, he was
gasping for air. He started breathing. And he was pressing up against
the restraining straps. And that went on for about an hour.” Baich says
Wood was taking deep, long breaths — “like he was gasping, like he was
drowning.” He adds that someone from the department of corrections’
medical staff checked on Wood seven times throughout the two-hour
process. Michael Kiefer, a writer for the Arizona Republic, reported
that Wood gasped 640 times.

Meanwhile, Baich was filtering information to another
attorney, who was filing a motion in U.S. District Court and the Arizona
Supreme Court in an attempt to get an order to resuscitate the inmate.
Wood died during the hearings. Arizona Governor Jan Brewer has asked for
a review of the state’s lethal-injection process, saying she was
“concerned by the length of the time it took” to complete the execution
but denied that Wood was in pain. “One thing is certain, however, inmate
Wood died in a lawful manner and by eyewitness and medical accounts he
did not suffer,” Brewer said in a statement.

Wood’s execution appeared to be eerily similar to
that of Dennis McGuire, a convicted murderer who was executed in Ohio
with the same drug combination used in Arizona. McGuire reportedly made
snoring noises, similar to the ones made by Wood, during his 25-minute
execution. Lethal-injection executions generally take 10 to 15 minutes
to complete.

Joseph Rudolph Wood III

ProDeathPenalty.com

Joseph Wood shot and killed his estranged girlfriend,
Debra Dietz, and her father, Eugene Dietz, on August 7, 1989 at a Tucson
automotive paint and body shop owned and operated by the Dietz family.
Since 1984, Wood and Debra had maintained a tumultuous relationship
increasingly marred by Wood's abusive and violent behavior. Eugene
generally disapproved of this relationship but did not actively
interfere. In fact, the Dietz family often included Wood in dinners and
other activities. Several times, however, Eugene refused to let Wood
visit Debra during business hours while she was working at the shop.

Wood disliked Eugene and told him he would “get him
back” and that Eugene would “be sorry.” Debra had rented an apartment
that she shared with Wood. Because Wood was seldom employed, Debra
supported him financially. Wood nevertheless assaulted Debra
periodically. She finally tried to end the relationship after a fight
during the 1989 July 4th weekend. She left her apartment and moved in
with her parents, saying “I don't want any more of this.” After Debra
left, Wood ransacked and vandalized the apartment. She obtained an order
of protection against Wood on July 8, 1989.

In the following weeks, however, Wood repeatedly
tried to contact Debra at the shop, her parents' home, and her
apartment. Debra and Eugene drove together to work at the shop early on
Monday morning, August 7, 1989. Wood phoned the shop three times that
morning. Debra hung up on him once, and Eugene hung up on him twice.
Wood called again and asked another employee if Debra and Eugene were at
the shop. The employee said that they had temporarily left but would
return soon. Debra and Eugene came back at 8:30 a.m. and began working
in different areas of the shop. Six other employees were also present
that morning. At 8:50 a.m., a Tucson Police officer saw Wood driving in
a suspicious manner near the shop. The officer slowed her patrol car and
made eye contact with Wood as he left his truck and entered the shop.

Eugene was on the telephone in an area where three
other employees were working. Wood waited for Eugene to hang up, drew a
revolver, and approached to within four feet of him. The other employees
shouted for Wood to put the gun away. Without saying a word, Wood
fatally shot Eugene once in the chest and then smiled. When the police
officer saw this from her patrol car she immediately called for more
officers. Wood left the shop, but quickly returned and again pointed his
revolver at the now supine Eugene. Donald Dietz, an employee and
Eugene's seventy-year-old brother, struggled with Wood, who then ran to
the area where Debra had been working. Debra had apparently heard an
employee shout that her father had been shot and was trying to telephone
for help when Wood grabbed her around the neck from behind and placed
his revolver directly against her chest. Debra struggled and screamed,
“No, Joe, don't!” Another employee heard Wood say, “I told you I was
going to do it, I have to kill you.” Wood then called Debra a “bitch”
and shot her twice in the chest.

Several police officers were already on the scene
when Wood left the shop after shooting Debra. Two officers ordered him
to put his hands up. Wood complied and dropped his weapon, but then
grabbed it and began raising it toward the officers. After again
ordering Wood to raise his hands, the officers shot Wood several times.
Wood was arrested and indicted on two counts of first degree murder and
two counts of aggravated assault against the police officers who subdued
him.

At trial, Wood conceded his role in the killings, but
argued that they were impulsive acts that were not premeditated. After a
five-day trial, the jury found Wood guilty on all counts. Following an
aggravation and mitigation hearing, the trial court sentenced Wood to
imprisonment for the assaults and to death for each murder.

Wood and his 29-year-old ex-girlfriend,
Debbie Dietz, had been involved in a turbulent relationship for 5 years,
which had been marred by numerous breakups and several domestic violent
incidents. Debbie was working at a local body shop owned by her family.

On August 7, 1989, Wood walked
into the shop and shot Gene Dietz, age 55, in the chest with a .38
caliber revolver, killing him. Gene Dietz's 70-year-old brother was
present and tried to stop Wood, but Wood pushed him away and proceeded
into another section of the body shop.

Wood went up to Debbie, placed
her in some type of hold, and shot her once in the abdomen and once in
the chest, killing her.

Wood then fled the building. Two
police officers approached Wood and ordered him to drop his weapon.
After Wood placed the weapon on the ground, he reached down and picked
it up, and pointed it at the officers. The officers fired, striking Wood
several times. Wood was transported to a local hospital where he
underwent extensive surgery.

PROCEDURAL POSTURE: The
defendant was convicted in Superior Court (Pima) of two counts of first-degree
murder and two counts of aggravated assault. He was sentenced to death
on each murder conviction. This is his automatic, direct appeal to the
Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) -
UPHELDThis aggravating circumstance exists only if the defendant's
murderous act itself puts other people in the "zone of danger." The
inquiry is whether, during the course of the murder, the defendant
knowingly engaged in conduct that created a real and substantial
likelihood that a specific third person might suffer a fatal injury.
No single factor is dispositive of this aggravating circumstance. Here,
three employees were present in the confined garage space where the
defendant shot one of them. One of the employees was only six to eight
feet away from the victim when he was shot. The defendant then turned
toward another employee, as if to shoot him, but the employee fled.
There was evidence that the defendant cocked and uncocked the gun twice
between shooting the first victim and shooting the second. The other
employees were found to be in the zone of danger based on the
defendant's actions.

(F)(8) (Multiple Homicides) - UPHELDThe (F)(8) finding was upheld without extensive discussion.
Wood did not challenge the finding on appeal. Wood shot and killed his
estranged girlfriend and her father at a Tucson body shop. The Court
noted that this was a double murder and the trial court properly found
the existence of the (F)(8) aggravating circumstance.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating
circumstances existed, but were insufficiently substantial to call for
leniency:

Impulsive personality exacerbated by drug
and alcohol abuse ["little, if any" weight]
History of substance abuse ["little, if any" weight]
Lack of Criminal History

The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as
mitigating circumstances:

Defendant was convicted of two counts of first-degree
murder and two counts of aggravated assault and sentenced to death for
each murder after jury trial in the Superior Court, Pima County, No.
CR–28449, Thomas Meehan, J. Defendant appealed. The Supreme Court,
Feldman, C.J., held that: (1) defendant's prior physical abuse of and
threats against victim were relevant to show state of mind and were
properly admitted; (2) hearsay statements about victim's fear and desire
to end relationship with defendant were admissible to explain
defendant's motive under exception to hearsay for then existing state of
mind, emotion, or intent; (3) error in admitting neighbor's testimony
that victim had told her that defendant had threatened her life was
harmless; (4) evidence was sufficient to support aggravated assault
conviction; and (5) aggravating circumstances outweighed mitigating
circumstances requiring imposition of death penalty. Affirmed.

FELDMAN, Chief Justice.

A Pima County jury convicted Joseph Rudolph Wood, III
(“Defendant”) of two counts of first degree murder and two counts of
aggravated assault. The trial court sentenced him to death for each
murder and to imprisonment for the assaults. Appeal to this court from
the death sentences is automatic. Ariz.R.Crim.P. 26.15, 31.2(b). We have
jurisdiction under Ariz. Const. art. VI, § 5(3), A.R.S. §§ 13–4031 and
13–4033(A), and Ariz.R.Crim.P. 31.

FACTS AND PROCEDURAL HISTORY

Defendant shot and killed his estranged girlfriend
Debra Dietz (“Debra”) and her father Eugene Dietz (“Eugene”) on Monday,
August 7, 1989, at a Tucson automotive paint and body shop (“the shop”)
owned and operated by the Dietz family. Since 1984, Defendant and Debra
had maintained a tumultuous relationship increasingly marred by
Defendant's abusive and violent behavior. Eugene generally disapproved
of this relationship but did not actively interfere. In fact, the Dietz
family often included Defendant in dinners and other activities. Several
times, however, Eugene refused to let Defendant visit Debra during
business hours while she was working at the shop. Defendant disliked
Eugene and told him he would “get him back” and that Eugene would “be
sorry.” Debra had rented an apartment that she shared with Defendant.
Because Defendant was seldom employed, Debra supported him financially.
Defendant nevertheless assaulted Debra periodically.FN1 She finally
tried to end the relationship after a fight during the 1989 July 4th
weekend. She left her apartment and moved in with her parents, saying “I
don't want any more of this.” After Debra left, Defendant ransacked and
vandalized the apartment. She obtained an order of protection against
Defendant on July 8, 1989. In the following weeks, however, Defendant
repeatedly tried to contact Debra at the shop, her parents' home, and
her apartment.FN2

FN1. Debra was often bruised and sometimes wore
sunglasses to hide blackened eyes. A neighbor who often heard “thuds and
banging” within Debra's apartment called police on June 30, 1989, after
finding Debra outside and “hysterical.” The responding officer saw cuts
and bruises on Debra. FN2. Defendant left ten messages on Debra's
apartment answering machine on the night of Friday, August 4, 1989. Some
contained threats of harm, such as: “Debbie, I'm sorry I have to do
this. I hope someday somebody will understand when we're not around no
more. I do love you babe. I'm going to take you with me.”

Debra and Eugene drove together to work at the shop
early on Monday morning, August 7, 1989. Defendant phoned the shop three
times that morning. Debra hung up on him once, and Eugene hung up on him
twice. Defendant called again and asked another employee if Debra and
Eugene were at the shop. The employee said that they had temporarily
left but would return soon. Debra and Eugene came back at 8:30 a.m. and
began working in different areas of the shop. Six other employees were
also present that morning. At 8:50 a.m., a Tucson Police officer saw
Defendant driving in a suspicious manner near the shop. The officer
slowed her patrol car and made eye contact with Defendant as he left his
truck and entered the shop. Eugene was on the telephone in an area where
three other employees were working. Defendant waited for Eugene to hang
up, drew a revolver, and approached to within four feet of him. The
other employees shouted for Defendant to put the gun away. Without
saying a word, Defendant fatally shot Eugene once in the chest and then
smiled. When the police officer saw this from her patrol car she
immediately called for more officers. Defendant left the shop, but
quickly returned and again pointed his revolver at the now supine
Eugene. Donald Dietz, an employee and Eugene's seventy-year-old brother,
struggled with Defendant, who then ran to the area where Debra had been
working.

Debra had apparently heard an employee shout that her
father had been shot and was trying to telephone for help when Defendant
grabbed her around the neck from behind and placed his revolver directly
against her chest. Debra struggled and screamed, “No, Joe, don't!”
Another employee heard Defendant say, “I told you I was going to do it,
I have to kill you.” Defendant then called Debra a “bitch” and shot her
twice in the chest. Several police officers were already on the scene
when Defendant left the shop after shooting Debra. Two officers ordered
him to put his hands up. Defendant complied and dropped his weapon, but
then grabbed it and began raising it toward the officers. After again
ordering Defendant to raise his hands, the officers shot Defendant
several times.

A grand jury indicted Defendant on two counts of
first degree murder and two counts of aggravated assault against the
officers. Although he did not testify, Defendant did not dispute his
role in the killings but argued he had acted impulsively and without
premeditation. A jury found Defendant guilty on all counts. The trial
court sentenced him to death for each of the murders and to concurrent
fifteen-year prison terms for the aggravated assaults, to be served
consecutively to the death sentences. This appeal followed.

DISCUSSION

A. Trial issues

Defendant makes many ineffective assistance of
counsel claims. Such claims generally should be pursued in
post-conviction relief proceedings pursuant to Ariz.R.Crim.P. 32.
Because they are fact-intensive and often involve matters of trial
tactics and strategy, trial courts are far better-situated to address
these issues. State v. Valdez, 160 Ariz. 9, 14–15, 770 P.2d 313, 318–19
(1989). We decline to address them here and turn instead to the other
issues presented.

Defendant alleges that the trial court improperly
admitted testimony from various witnesses, violating his confrontation
and due process rights. Unfortunately, appellate counsel has failed to
articulate separate grounds of objection to each portion of
testimony.FN3 We will, therefore, separate and address the challenged
testimony in seven categories. Because the trial court is in the best
position to judge the admissibility of proffered testimony, we review
most evidentiary claims on a discretionary standard. See, e.g., State v.
Prince, 160 Ariz. 268, 274, 772 P.2d 1121, 1127 (1989); State v. Chapple,
135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983). FN3. Defense
counsel reproduced 20 excerpts of trial testimony amounting to 14 pages
in his opening brief and then made a generic claim that all the
testimony was improperly admitted on hearsay, relevance, opinion
testimony, or Rule 404 grounds. To say the least, this is an unhelpful
appellate practice. On appeal, counsel must clearly identify the
objectionable portions of testimony and the specific basis for each
claimed error. See Ariz.R.Crim.P. 31.13(c)(1)(iv). Because this is a
capital case and we must search for fundamental error, we will examine
the evidentiary claims before considering the question of any waiver by
appellate counsel.

This court has “long held that where the existence of
premeditation is in issue, evidence of previous quarrels or difficulties
between the accused and the victim is admissible.” Jeffers, 135 Ariz. at
418, 661 P.2d at 1119 (citing Leonard v. State, 17 Ariz. 293, 151 P. 947
(1915)). Such evidence “tends to show the malice, motive or
premeditation of the accused.” Id. at 418, 661 P.2d at 1119 (emphasis
added). In some cases, of course, such evidence may also show lack of
premeditation. In either event, it is relevant. Defendant's abuse of
Debra falls squarely within this rule and, under the facts of this case,
tends to show both motive and premeditation. Premeditation was the main
trial issue. The defense was lack of motive to kill either victim and
the act's alleged impulsiveness, which supposedly precluded the
premeditation required for first degree murder. See A.R.S. §
13–1105(A)(1). Defendant's prior physical abuse of and threats against
Debra were relevant to show his state of mind and thus were properly
admitted under Rule 404(b). See State v. Featherman, 133 Ariz. 340,
344–45, 651 P.2d 868, 872–73 (Ct.App.1982) (evidence of prior assault on
victim admissible to show defendant's intent in murder prosecution).

b. Hearsay statements of Debra Dietz

A number of witnesses testified to statements made by
Debra about her fear of Defendant and her desire to end their
relationship. Defendant claims the trial court erred in admitting this
testimony over a continuing objection that the statements were
irrelevant and hearsay.FN4 We address each contention. FN4. The trial
court denied Defendant's pretrial motion to suppress all hearsay
testimony relating to statements by Debra and recorded defense counsel's
continuing objection to such testimony. This is a proper method of
preserving error for appeal. State v. Christensen, 129 Ariz. 32, 36, 628
P.2d 580, 584 (1981).

Evidence is relevant “if it has any basis in reason
to prove a material fact in issue or if it tends to cast light on the
crime charged.” State v. Moss, 119 Ariz. 4, 5, 579 P.2d 42, 43 (1978);
Ariz.R.Evid. 401. We have found similar testimony relevant in analogous
cases. For instance, in State v. Fulminante, evidence of the victim's
fear of the defendant and their acrimonious relationship was relevant to
the defendant's motive and admissible to refute defense claims that the
relationship was harmonious. 161 Ariz. 237, 251, 778 P.2d 602, 616
(1989), aff'd, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).FN5
Contrary to Defendant's assertion, State v. Charo, 156 Ariz. 561, 754
P.2d 288 (1988), and State v. Christensen, 129 Ariz. 32, 628 P.2d 580
(1981), are consistent with this general rule. Those cases hold merely
that evidence of the victim's fear of the defendant is not relevant to
prove the defendant's conduct or identity. Charo, 156 Ariz. at 564–65,
754 P.2d at 291–92; Christensen, 129 Ariz. at 36, 628 P.2d at 584. In
the present case, by contrast, Defendant's conduct and identity were
undisputed. FN5. Other jurisdictions follow this approach. See, e.g.,
United States v. Donley, 878 F.2d 735, 738 (3d Cir.1989) (victim's
statements regarding plan to end relationship relevant to defendant's
mental state in murder prosecution), cert. denied, 494 U.S. 1058, 110
S.Ct. 1528, 108 L.Ed.2d 767 (1990); State v. Payne, 327 N.C. 194, 394
S.E.2d 158, 165, cert. denied, 498 U.S. 1092, 111 S.Ct. 977, 112 L.Ed.2d
1062 (1990).

The statements about Debra's fear and desire to end
the relationship helped explain Defendant's motive. The disputed trial
issues were Defendant's motive and mental state—whether Defendant acted
with premeditation or as a result of a sudden impulse. The prosecution
theorized that Defendant was motivated by anger or spite engendered by
Debra's termination of the relationship.FN6 Debra's statements were
relevant because they showed her intent to end the relationship, which
in turn provided a plausible motive for premeditated murder. See
Fulminante, 161 Ariz. at 251, 778 P.2d at 616. In addition, Debra's
statements were also relevant to refute Defendant's assertion that he
and Debra had secretly maintained their relationship after July 4, 1989.
Id. FN6. Immediately after the murders, Defendant repeatedly said that
“if he and Debra couldn't be together in life, they would be together in
death.”

Defendant contends that even if the statements were
relevant, they were still inadmissible hearsay. Although hearsay, these
statements fall within a well-established exception allowing admission
of hearsay statements concerning the declarant's then-existing state of
mind, emotion, or intent, if the statements are not offered to prove the
fact remembered or believed by the declarant. Ariz.R.Evid. 803(3).
Debra's statements were not offered to prove any fact. Instead, they
related solely to her state of mind when the statements were made and
thus fit within the Rule 803(3) exception. Fulminante, 161 Ariz. at 251,
778 P.2d at 616 (victim's desire to move from defendant's home properly
admitted under Rule 803(3)). The trial court did not err in admitting
this testimony.

c. The neighbor's testimony

The following exchange occurred during the state's
direct examination of a neighbor who lived next to the apartment shared
by Defendant and Debra: Q. Did she [Debra] ever have another
conversation with you later on when she related the same information to
you? A. Yes, she did. I remember that instance very clearly ... she told
me that she did not want to stay at the apartment because Joe had
threatened her life. FN7 FN7. Reporter's Transcript (“R.T.”), Feb. 20,
1991, at 46–47 (emphasis added).

Neither Defendant nor the state addressed why this
particular testimony may have been offered, either at trial or on
appeal. The statement that Defendant had threatened Debra does not
reflect Debra's state of mind but rather appears to be a statement of
“memory or belief to prove the fact remembered or believed.” Ariz.R.Evid.
803(3). This declaration therefore falls outside the state of mind
exception and should not have been admitted. Charo, 156 Ariz. at 563–64,
754 P.2d at 190–91; Christensen, 129 Ariz. at 36, 628 P.2d at 584.
Defendant preserved this claim by his continuing objection at trial, so
we must consider the effect of its admission.

We review a trial court's erroneous admission of
testimony under a harmless error standard. Bible, 175 Ariz. at 588, 858
P.2d at 1191. Unless an error amounts to a structural defect, it is
harmless if we can say “beyond a reasonable doubt that the error had no
influence on the jury's judgment.” Id.; see also Sullivan v. Louisiana,
508 U.S. 275, ––––, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (error
is only harmless if guilty verdict “was surely unattributable to the
error”). We consider particular errors in light of the totality of the
trial evidence. State v. White, 168 Ariz. 500, 508, 815 P.2d 869, 877
(1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439
(1992). An error that requires reversal in one case may be harmless in
another due to the fact-specific nature of the inquiry. Bible, 175 Ariz.
at 588, 858 P.2d at 1191. Premeditation was the key trial issue, and we
recognize that a prior threat is relevant to that issue. Premeditation
requires proof that the defendant “made a decision to kill prior to the
act of killing.” State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216
(1985). The interval, however, can be short. Id. Either direct or
circumstantial evidence may prove premeditation. State v. Hunter, 136
Ariz. 45, 48, 664 P.2d 195, 198 (1983).

Initially, we note that a tendency to act impulsively
in no way precludes a finding of legal premeditation. Defendant offered
little evidence to support his claim that he acted without premeditation
on the morning of the murders. A defense expert briefly testified that
Defendant displayed no signs of organic brain damage or psychotic
thinking. The essence of his testimony militating against premeditation
was that Defendant “appeared to be an individual that would act in an
impulsive fashion, responding more to emotions rather than thinking
things out.” This expert, however, examined Defendant for a total of six
hours more than thirteen months after the murders, and there was no
testimony correlating this trait to Defendant's conduct on August 7,
1989. Other witnesses testified that Defendant had, at various times,
acted violently for no apparent reason. These instances usually
occurred, however, when Defendant had been abusing alcohol or drugs.
There was no evidence that Defendant consumed alcohol or drugs before
the murders. There was, on the other hand, a great deal of evidence that
unequivocally compels the conclusion that Defendant acted with
premeditation. See Bible, 175 Ariz. at 588, 858 P.2d at 1191. Defendant
disliked and had threatened Eugene. Three days before the killing,
Defendant left threatening phone messages with Debra showing his intent
to harm her.FN8 Defendant called the shop just before the killings and
asked whether Debra and Eugene were there. Although Defendant regularly
carried a gun, on the morning of the murders he also had a spare
cartridge belt with him, contrary to his normal practice. Defendant
calmly waited for Eugene to hang up the telephone before shooting him.
There was no evidence that Eugene did or said anything to which
Defendant might have impulsively responded. Finally, Defendant looked
for Debra after shooting Eugene, found her in a separate area, and held
her before shooting her, stating, “I told you I was going to do it, I
have to kill you.” FN8. See supra, note 2.

The hearsay statement about threats came from the
state's first witness on the first day of a five-day trial. The
prosecutor neither emphasized it nor asked the witness to elaborate. Nor
did the prosecutor mention the statement in closing argument. Cf. Charo,
156 Ariz. at 563, 754 P.2d at 190 (noting prosecution's emphasis of
improperly-admitted evidence during closing argument in finding
reversible error). We note, also, that other statements, properly
admitted, established that Defendant had threatened Debra on other
occasions. We stress that this court cannot and does not determine an
error is harmless merely because the record contains sufficient
untainted evidence. Bible, 175 Ariz. at 590, 858 P.2d at 1193. Given
this record, however, we are convinced beyond a reasonable doubt that
the statement did not influence the finding of premeditation implicit in
the verdict. See State v. Coey, 82 Ariz. 133, 142, 309 P.2d 260, 269
(1957) (finding no reversible error in admission of hearsay statement
bearing on pre-meditation). The error was harmless.

d. Constitutional claims

Defendant urges that admission of this and other
hearsay statements violated his right to confront witnesses in
contravention of the Sixth and Fourteenth Amendments. The state claims
that Defendant failed to properly raise this claim in either this or the
trial court. We need not reach these issues, however, because of our
disposition of Defendant's hearsay claims. There is no Confrontation
Clause violation when the hearsay testimony of a deceased declarant is
admitted pursuant to a firmly-rooted hearsay exception. White v.
Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992);
Bible, 175 Ariz. at 596, 858 P.2d at 1199. The Rule 803(3) state of mind
exception is such a recognized exception. See, e.g., Lenza v. Wyrick,
665 F.2d 804, 811 (8th Cir.1981). Additionally, as in this case, a
Confrontation Clause violation can be harmless error. Harrington v.
California, 395 U.S. 250, 253, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284
(1969); State v. Wilhite, 160 Ariz. 228, 233, 772 P.2d 582, 587
(Ct.App.1989).

e. Hearsay statements of Eugene Dietz

Defendant alleges next that several witnesses
improperly testified about hearsay statements made by Eugene Dietz. To
the extent these statements concerned Eugene's state of mind about the
animosity between him and Defendant, the statements, like Debra's, were
relevant and properly admitted under Rule 803(3). See Fulminante, 161
Ariz. at 251, 778 P.2d at 616. One witness testified, however, that
Eugene said, “Nobody is going to stop [Defendant] until he kills
somebody.” This does not fall within the Rule 803(3) state of mind
exception because it is a statement of belief to prove the fact
believed. Christensen, 129 Ariz. at 36, 628 P.2d at 584. Defendant did
not object to this testimony, however, nor was it the subject of any
pretrial motion. This claim thus is waived unless it rises to the level
of fundamental error. State v. West, 176 Ariz. 432, 445, 862 P.2d 192,
205 (1993), cert. denied, 511 U.S. 1063, 114 S.Ct. 1635, 128 L.Ed.2d 358
(1994). Error is only fundamental if it goes to the essence of a case,
denies the defendant a right essential to a defense, or is of such
magnitude that the defendant could not have received a fair trial. State
v. Cornell, 179 Ariz. 314, 329, 878 P.2d 1352, 1367 (1994). The
“essence” of this case was Defendant's mental state at the time of the
murders. Eugene's statement of belief does not clearly establish
premeditation nor refute Defendant's defense of impulsivity. Given the
clear quantum of evidence supporting premeditation, admission of this
lone statement did not deprive Defendant of a fair trial. See id. at 51.
We conclude that admission of Eugene's hearsay statement does not meet
the “stringent standard” of fundamental error. Bible, 175 Ariz. at 573,
858 P.2d at 1176.

f. Defendant's statements

Defendant next claims that his own statements were
hearsay and improperly admitted. This claim is meritless. A defendant's
out-of-court statements are not hearsay when offered by the state.
Ariz.R.Evid. 801(d)(2)(A); State v. Atwood, 171 Ariz. 576, 635, 832 P.2d
593, 652 (1992).

g. Other evidentiary claims

On appeal, Defendant objects for the first time to
the admission of testimony revealing that Defendant had been fired from
two jobs, once for fighting with a co-worker and once due to his
“temperament.” Because these claims were not raised below, we review
only for fundamental error. West, 176 Ariz. at 445, 862 P.2d at 204.
Arguably, this testimony concerns prior bad acts inadmissible under Rule
404. The state claims Defendant made a tactical decision not to object
to the testimony because it tended to show Defendant's impulsivity. We
decline to resolve the issue, however, because even if the testimony was
erroneously admitted, its admission does not rise to the level of
fundamental error. The testimony in both instances was perfunctory and
undetailed. Moreover, there was other compelling evidence of Defendant's
ill temper, much of it introduced by Defendant himself on the issue of
impulsivity. Defendant's final evidentiary claim concerns testimony of a
witness who related a neighbor's report that Defendant had vandalized
Debra's apartment. This testimony was hearsay and should not have been
admitted. See Ariz.R.Evid. 801 and 802. Again, Defendant did not object
to this testimony. Because other witnesses presented direct testimony on
the same issue, we conclude Defendant was not prejudiced. See Fulminante,
161 Ariz. at 250, 778 P.2d at 615. We find no fundamental error.

2. Failure to instruct on manslaughter

The trial court instructed the jury on both first and
second degree murder under A.R.S. §§ 13–1105(A)(1) and 13–1104.
Defendant claims the trial court committed reversible error by failing
to sua sponte instruct the jury on the lesser-included offense of
manslaughter. We disagree. It is true that in capital cases, trial
courts must instruct on all lesser-included homicide offenses supported
by the evidence. State v. Comer, 165 Ariz. 413, 422, 799 P.2d 333, 342
(1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 460
(1991). It is equally true, however, that such instructions need not be
given if unsupported by the evidence. State v. Clabourne, 142 Ariz. 335,
345, 690 P.2d 54, 64 (1984).

The manslaughter statute provides, in relevant part:
A. A person commits manslaughter by: 1. Recklessly causing the death of
another person; or 2. Committing second degree murder ... upon a sudden
quarrel or heat of passion resulting from adequate provocation by the
victim; or 3. Committing second degree murder ... while being coerced to
do so by the use or threatened immediate use of unlawful deadly physical
force ... A.R.S. § 13–1103(A). There was no evidence to support a
manslaughter instruction. These were not reckless shootings. Nor was
there evidence Defendant was provoked or coerced. Defendant
intentionally shot both victims at close range. The claim is meritless.
See State v. Ortiz, 158 Ariz. 528, 534, 764 P.2d 13, 19 (1988).

3. Sufficiency of evidence of aggravated assault

The trial court denied Defendant's motion for
directed verdicts on the aggravated assault counts. Defendant now
alleges those convictions are not supported by sufficient evidence
because neither police officer testified to a subjective fear of
imminent physical harm. We have previously rejected this same argument.
Valdez, 160 Ariz. at 11, 770 P.2d at 315. To be guilty of aggravated
assault, “the defendant need only intentionally act using a deadly
weapon or dangerous instrument so that the victim is placed in
reasonable apprehension of imminent physical injury.” Id. Either direct
or circumstantial evidence may prove the victim's apprehension. There is
no requirement that the victim testify to actual fright. Id. There was
ample circumstantial evidence supporting the conclusion that the
officers were apprehensive or in fear of imminent harm. The police
officers knew that at least one victim had been shot and that other
shots had been fired. Defendant grabbed his revolver and began to aim at
the officers despite their orders not to do so. Police officers, of
course, are not immune from the fear that anyone would reasonably feel
under these circumstances. See In re Juvenile Appeal No. J–78539–2, 143
Ariz. 254, 256, 693 P.2d 909, 911 (1984) (sufficient evidence of
apprehension where police officer-victim drew gun and assumed protective
stance). The jury could have concluded the officers must have acted with
apprehension or fear when they used deadly force against Defendant. The
evidence certainly supports that conclusion.

4. Prosecutorial misconduct

Defendant alleges the prosecutor “ran amok” at trial,
particularly in his cross-examination of Dr. Allender, Defendant's
psychological expert. FN9 Because defense counsel made no trial
objection, again we review these claims only for fundamental error.
Bible, 175 Ariz. at 601, 858 P.2d at 1204. In determining whether a
prosecutor's conduct amounts to fundamental error, we focus on the
probability it influenced the jury and whether the conduct denied the
defendant a fair trial. See id. FN9. Defendant styles several additional
alleged instances of prosecutorial misconduct as ineffective assistance
of counsel claims, based on his defense counsel's failure to object. As
previously noted, these claims are better left to Rule 32 proceedings.
See Valdez, 160 Ariz. at 14–15, 770 P.2d at 318–19. We do not address
them.

Subject to Rule 403 limitations, expert witnesses may
disclose facts not otherwise admissible if they form a basis for their
opinions and are of a type normally relied on by experts. Ariz.R.Evid.
703; State v. Lundstrom, 161 Ariz. 141, 145, 776 P.2d 1067, 1071 (1989).
If such facts are disclosed, they are admissible only to demonstrate the
basis for the expert's testimony. Lundstrom, 161 Ariz. at 146, 776 P.2d
at 1071. However, to offset the potential advantage this rule bestows on
the proponent of expert opinion, “it is proper to inquire into the
reasons for [the] opinion, including the facts upon which it is based,
and to subject the expert to a most rigid cross-examination concerning
his opinion and its sources.” State v. Stabler, 162 Ariz. 370, 374, 783
P.2d 816, 820 (Ct.App.1989); Ariz.R.Evid. 705. This latitude on
cross-examination extends to matters otherwise inadmissible. United
States v. A & S Council Oil Co., 947 F.2d 1128, 1135 (4th Cir.1991)
(“Rule 703 creates a shield by which a party may enjoy the benefit of
inadmissible evidence by wrapping it in an expert's opinion; Rule 705 is
the cross-examiner's sword, and, within very broad limits, he may wield
it as he likes.”).

With these principles in mind, we turn to the alleged
misconduct. On direct examination, defense counsel asked Dr. Allender
what materials he reviewed in preparing to examine Defendant. Dr.
Allender replied, in part, “a variety of police reports from the Tucson
Police Department, as well as from the Las Vegas Police Department.” On
cross-examination, the following exchange occurred: Q. Directing your
attention, you said you had some Las Vegas police reports? A. Yes. Q.
You had police reports from 1979? A. I believe I did. I would have to
flip through and look for it if you want me to. Q. Do you recall in 1979
an incident when he was arrested from some criminal activity? A. I think
I found a report from '79 from Las Vegas. R.T., Feb. 22, 1991, at
160–61. Defendant alleges this was improper because the trial court had
ruled inadmissible Defendant's 1979 Las Vegas misdemeanor assault
conviction. On cross-examination, however, the prosecutor simply asked
Dr. Allender to elaborate on the reports he first mentioned on direct
examination. The jury never learned the details of the conduct
underlying Defendant's Las Vegas arrest. Because Dr. Allender relied on
the reports in forming his opinion of Defendant, the prosecutor's
cross-examination was proper.

Defendant was entitled, however, to a limiting
instruction that references to the Las Vegas police reports were
admissible only to show the basis of Dr. Allender's opinions. See
Lundstrom, 161 Ariz. at 148, 776 P.2d at 1074. Defense counsel did not
request such an instruction. On this record, we conclude that the
absence of such an instruction did not deprive Defendant of a fair
trial. There was no fundamental error. Defendant also argues that the
prosecutor improperly cross-examined Dr. Allender about the possibility
of testing Defendant to determine the validity of his claim that he had
no memory of the day of the murders. The full extent of that questioning
was as follows: Q. Didn't Dr. Morris [another psychologist who examined
Defendant] suggest that hypnosis or amobarbital might be ideal to
discover whether this defendant was malingering? A. He suggested that
those might be techniques. Q. With hypnosis, you place them under
hypnosis in order to find out what the truth of the matter was? A.
[Answer about the theory of hypnosis and amobarbital.] Q. So you didn't,
did you attempt, did you request a hypnosis evaluation? A. I didn't
because I'm not as convinced about those techniques as Dr. Morris. Q.
Amobarbital, is that a truth serum? A. That is what they call it, that
is what people have called it along the way. R.T., Feb. 22, 1991, at
173–74.

Defendant claims this exchange prejudiced him much
like questioning a defendant about refusing to take a polygraph test. It
is true that, as with polygraph test results, courts generally exclude
testimony induced or “refreshed” by drugs or hypnosis. Jeffers, 135
Ariz. at 431, 661 P.2d at 1132; State v. Mena, 128 Ariz. 226, 228–29,
624 P.2d 1274, 1276–77 (1981). Defendant's analogy, however, is
misguided. The prosecutor's cross-examination was not intended to impugn
Defendant but to test the basis and credibility of Dr. Allender's
opinions concerning whether Defendant was faking his asserted memory
loss at the time of the murders. Dr. Morris had examined Defendant and
recommended the disputed testing. Dr. Allender relied in part on Dr.
Morris's written evaluation in forming his own opinions about Defendant.
Without reaching the issue of admissibility of expert testimony based
upon the results of hypnotic or amobarbital examination of a subject, we
conclude the prosecutor acted within the wide latitude permitted on
cross-examination. Stabler, 162 Ariz. at 374, 783 P.2d at 820.

5. The Wussler instruction

Defendant next claims the trial court violated his
due process rights by instructing the jury that it must acquit Defendant
of the principle charge before considering any lesser included offenses.
Although we have previously rejected a similar claim, see State v.
Wussler, 139 Ariz. 428, 429–30, 679 P.2d 74, 75–76 (1984), we need not
address it here.FN10 The record reveals that the trial court refused the
state's request to give such an instruction. Rather, the trial court
instructed the jury that if it determined Defendant was guilty of either
first or second degree murder, but had a reasonable doubt as to which
one, it must find him guilty of second degree murder. That instruction
was not improper. FN10. We presently have before us a case raising the
so-called Wussler issue. See State v. Cañez, Ariz.Sup.Ct. No.
CR–93–0161–PR.

6. Alleged plea bargain veto by victims' family

On appeal, Defendant urges for the first time that
his due process and equal protection rights were violated when the
victims' family allegedly “vetoed” a plea bargain in which the state
would not seek the death penalty in exchange for a guilty plea to all
counts. Defendant attacks the family's involvement in both the plea
bargaining process and the decision to seek the death penalty. Defendant
rests his claim on the following passage from his trial counsel's
opposition to a motion to continue, which the state filed at the request
of the victims' family: FN11. At one time, Defendant's trial was set for
December 12, 1991. The victims' family asked the state to seek a
continuance until after the holiday season because they feared jurors
might be “more concerned with the fast approaching Christmas Holiday.”
The family communicated these concerns to the trial court in a letter.
The court denied the state's motion. Subsequently, the trial court
continued the trial at the parties' mutual request due to scheduling
conflicts.

In this case, the family has already put the quietus
on any plea negotiations. Undersigned counsel and the prosecutor had
earlier discussions about the defendant entering into a guilty plea to
two counts of First Degree Murder, with two life sentences.... Upon
conferring with the Dietz family, the prosecutor announced he could not
make such an offer. Clearly the County Attorney has permitted the family
to put the finishing stroke to a fair and economical end to this case.
Opposition to Motion to Continue Trial, filed Nov. 19, 1990, at 2. The
state properly may consider the wishes of the victim's family in
deciding whether to seek the death penalty, so long as it does not
accord undue weight to those wishes. State v. Lavers, 168 Ariz. 376,
397, 814 P.2d 333, 354 (1991), cert. denied, 502 U.S. 926, 112 S.Ct.
343, 116 L.Ed.2d 282 (1991). Moreover, Arizona crime victims have a
constitutional and procedural right to confer with the state on any
prospective plea bargain. See Ariz. Const. art. II, § 2.1(A)(4);
Ariz.R.Crim.P. 39(b)(7). In the present case we need not consider the
breadth of that right because the record does not support Defendant's
contention that the family's wishes were the controlling factor in the
state's decision to forego a plea and pursue the death penalty. Other
than the passage quoted above, the record is silent on plea negotiations
and the state's decision to seek death. Since that passage appears to be
little more than defense counsel's rhetorical comment, and there is no
evidence in the present record that the state gave any undue
consideration to the desires of the victims' family, we find no error.
See Lavers, 168 Ariz. at 397–98, 814 P.2d at 354–55.

B. Sentencing issues

In all capital cases we independently review the
aggravating and mitigating circumstances to determine whether the former
outweigh the latter and warrant imposition of the death penalty. State
v. Johnson, 147 Ariz. 395, 400, 710 P.2d 1050, 1055 (1985). Our duty is
to ensure that Arizona's capital sentencing scheme “genuinely narrow[s]
the class of persons eligible for the death penalty.” Arave v. Creech,
507 U.S. 463, ––––, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993).

1. Aggravating circumstances

Following an aggravation-mitigation hearing, the
trial court entered a special verdict pursuant to A.R.S. § 13–703(D).
The trial court found two aggravating circumstances beyond a reasonable
doubt: (1) Defendant was convicted of one or more other homicides, as
defined in A.R.S. § 13–1101, which were committed during the commission
of each offense; and (2) in the commission of the offenses Defendant
knowingly created a grave risk of death to another person or persons in
addition to the victims of the offenses. See A.R.S. §§ 13–703(F)(8) and
(F)(3). There is no question about the first aggravating circumstance.
Defendant does not challenge the trial court's finding that he was
convicted of another homicide during the commission of each offense.
This was a double murder. The trial court properly found the A.R.S. §
13–703(F)(8) aggravating circumstance. See Lavers, 168 Ariz. at 393, 814
P.2d at 350.

The trial court also found beyond a reasonable doubt
that in the commission of the murders, Defendant knowingly created a
grave risk of death to another person in addition to the victims. See
A.R.S. § 13–703(F)(3). Defendant urges that this finding was erroneous
because he did not actually shoot at any person other than the victims
and because no bystanders were within his “line of fire.” Although there
is merit to Defendant's arguments, we reject such a narrow reading of
this aggravating circumstance under the unusual facts of this case. The
“grave risk of death to another” factor applies only if the defendant's
“murderous act itself put other people in a zone of danger.” See, e.g.,
State v. McCall, 139 Ariz. 147, 160–61, 677 P.2d 920, 933–34 (1983)
(citing cases), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d
375 (1984). We have never, however, limited this factor to cases in
which another person was directly in the line of fire. For example, we
have found a zone of danger where the defendant shot his intended victim
while a third person was nearby and then pointed his gun at the third
person before returning his attention to the victim. State v. Nash, 143
Ariz. 392, 405, 694 P.2d 222, 235, cert. denied, 471 U.S. 1143, 105
S.Ct. 2689, 86 L.Ed.2d 706 (1985). We noted there that in the absence of
such a combination of factors—the third person's proximity during the
actual shooting and the defendant's pointing his gun—the general rule is
that mere presence of bystanders or pointing a gun at another to
facilitate escape does not bring a murderous act within A.R.S. §
13–703(F)(3). Id. at 405, 684 P.2d at 235 (citing Jeffers, 135 Ariz. at
429, 661 P.2d at 1130 (pointing gun to quiet third person)); see also
State v. Smith, 146 Ariz. 491, 503, 707 P.2d 289, 301 (1985) (risk to
others factor could not be found merely because defendant took weapon
into crowded public place where bystander could be hurt). No single
factor is dispositive of this circumstance. Our inquiry is whether,
during the course of the killing, the defendant knowingly engaged in
conduct that created a real and substantial likelihood that a specific
third person might suffer fatal injury.

In this case, several factors in combination support
the conclusion that Defendant knowingly created a grave risk of death to
others. FN12 First, at least three other employees were present in the
confined garage where Defendant shot Eugene. See State v. McMurtrey, 151
Ariz. 105, 108, 726 P.2d 202, 205, cert. denied, 480 U.S. 911, 107 S.Ct.
1359, 94 L.Ed.2d 530 (1987) (presence of others in immediate area
supports grave risk circumstance). One was standing only six to eight
feet away from Eugene at the time of the shooting. See Nash, 143 Ariz.
at 404–05, 694 P.2d at 234–35. After Defendant shot Eugene, he turned
toward another employee as if “he was going to shoot but [that employee]
... really got out of there fast.” FN13 See id. at 405, 694 P.2d at 235
(defendant's aiming at bystander, who dived under desk to escape injury,
supports factor). When Defendant pointed his gun at Eugene again, one
employee fought with Defendant and even grabbed the gun's barrel.
Moreover, a firearms expert testified that the position of the fired and
unfired cartridges in the murder weapon showed that Defendant had cocked
and uncocked the gun twice between shooting Eugene and Debra. Thus,
there is evidence Defendant knowingly prepared the gun to fire both when
he assumed a shooting stance toward one employee and when he grappled
with the other. All this occurred during Defendant's commission of the
two murders. Without retreating from Nash and Smith, we believe that
under these circumstances the judge's finding that Defendant created a
grave risk of death to at least these two employees is correct.FN14

FN12. In its special verdict, the trial court failed
to specify which of the several persons present at the murder scene
Defendant placed at grave risk of death. We thus review the record to
determine whether the factor applies beyond a reasonable doubt to any of
those persons. FN13. R.T., Feb. 20, 1991, at 166. FN14. The state urges
also that the A.R.S. § 13–703(F)(3) circumstance was satisfied when,
after the murders, Defendant raised his gun toward the two police
officers. Our disposition of this issue makes addressing this argument
unnecessary. We note, however, that the statutory elements of aggravated
assault are not necessarily interchangeable with the requirements for
the grave risk of death to another aggravating circumstance. See
Jeffers, 135 Ariz. at 428, 661 P.2d at 1129.

2. Mitigating factors

In capital sentencing proceedings, the trial court
must consider the mitigating factors in A.R.S. § 13–703(G) as well as
any aspect of the defendant's background or the offense relevant to
determining whether the death penalty is appropriate. Bible, 175 Ariz.
at 605, 858 P.2d at 1208. Defendant must establish mitigating factors by
a preponderance of the evidence. Id. We independently examine the record
for mitigating evidence to determine whether the death sentence is
justified. State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1991).
In its special verdict, the trial court stated it found the following
mitigating factors: Lack of any prior felony convictions and any other
mitigating circumstances set forth in the presentence report, including
all testimony presented by the psychiatrist ... [in] mitigations [sic]
of sentence. Including the chemical substance abuse problems which you
have suffered from, the Court finds that ... [the] mitigating
circumstances are not sufficiently mitigating to outweigh the
aggravating factors found by this Court beyond a reasonable doubt. R.T.,
July 12, 1991, at 32. Defendant argues that the trial court erroneously
failed to find several statutory mitigating circumstances. We address
each claim in turn.

Defendant urges that the trial court erred in not
finding his “capacity to appreciate the wrongfulness of his conduct or
to conform his conduct to the requirement of the law was significantly
impaired, but not so impaired as to constitute a defense to
prosecution.” A.R.S. § 13–703(G)(1). This factor is phrased
disjunctively so that proof of incapacity as to either ability to
appreciate or conform establishes the mitigating circumstance. State v.
Rossi, 154 Ariz. 245, 251, 741 P.2d 1223, 1229 (1987). Defendant offered
expert testimony in support of his claim that his actions were due
largely to his chronic alcohol and drug dependency and his impulsive
personality. The trial court noted this testimony but nevertheless
concluded this mitigating circumstance did not apply. We agree that the
record does not support Defendant's mitigation claim under A.R.S. §
13–703(G)(1).

Defendant offered no evidence that he did not
appreciate the wrongfulness of his conduct, and we have found none in
the record. Indeed, Defendant's own words belie the notion. After police
shot him, Defendant heard the police radio dispatcher ask whether “the
bad guy” had been apprehended. Defendant, who was conscious and
coherent, stated, “I'm the bad guy.” There is no evidence Defendant's
capacity to appreciate the wrongfulness of his actions was diminished.
We also conclude there is insufficient evidence that Defendant's ability
to conform his conduct to the law was significantly impaired. The only
evidence for this proposition appears in Dr. Allender's trial testimony
and Dr. Breslow's sentencing hearing testimony. Neither could directly
address Defendant's conduct on the date of the murders because Defendant
maintained during their evaluations that he had no recall of the events
of the shootings. The essence of Dr. Allender's testimony was that
Defendant “appeared to be an individual who would act in an impulsive
fashion, responding more to emotions rather than thinking things out.”
Dr. Breslow testified that Defendant has a narcissistic personality,
which means “he tends to be very sensitive to any slight criticisms or
rejections and tends to respond with anger inappropriately.” In his
opinion, Defendant's substance abuse history had a significant impact on
his behavior at the time of the killings. FN15. Two factors weaken Dr.
Breslow's testimony. First, before examining Defendant but after
studying prior evaluations and records, Dr. Breslow stated in a letter
to defense counsel that Defendant's “drug and alcohol use was not of an
early enough onset and chronicity to result in significant impairment in
impulse control or other maturation affecting the ability to process
feelings and behavior.” This information may have prompted Defendant to
modify his responses in his subsequent interview with Dr. Breslow.
Second, Dr. Breslow first examined Defendant only nine days before his
sentencing hearing. See Rossi, 154 Ariz. at 251, 741 P.2d at 1229
(commenting on the significance of psychological evaluations based on
interviews long after commission of crime).

Generally, “a mere character or personality disorder
alone is insufficient to constitute a mitigating circumstance.” See,
e.g., State v. Brewer, 170 Ariz. 486, 505, 826 P.2d 783, 802 (1992)
(citing cases). Both Dr. Breslow and Dr. Allender stated that Defendant
does not suffer from any form of mental illness, but only from a form of
personality trait that drug and alcohol abuse often exacerbated.
Defendant admitted, however, that he had used no drugs for three days
prior to the murders and had consumed only two alcoholic drinks over
twelve hours before the murders. This case falls far short of those
meeting the A.R.S. § 13–703(G)(1) mitigating circumstance. Cf., e.g.,
State v. Jimenez, 165 Ariz. 444, 459–62, 799 P.2d 785, 797–800 (1990)
(defendant suffered from psychotic illness, experienced hallucinations,
and heard voices); Rossi, 154 Ariz. at 249–51, 741 P.2d at 1227–29
(defendant suffered from cocaine intoxication with delusions and
hallucinations).

We further believe Defendant's impulsive personality
and history of substance abuse merit little, if any, independent
consideration in mitigation. As noted, Defendant was not under the
influence of any intoxicating substance at the time of the murders. See
Bible, 175 Ariz. at 606, 858 P.2d at 1209. The evidence did not show
that Defendant's impulsive personality rendered him unable to control
his conduct. Poor impulse control, standing alone, has little mitigating
weight. Brewer, 170 Ariz. at 506, 826 P.2d at 803. We reject Defendant's
claim that he was “under unusual and substantial duress, although not
such as to constitute a defense to prosecution.” A.R.S. § 13–703(G)(2).
For this mitigating circumstance to apply, “one person must coerce or
induce another person to do something against his will.” State v.
Castañeda, 150 Ariz. 382, 394, 724 P.2d 1, 13 (1986). Moreover, impulse
control problems cannot constitute duress. Id. There is no evidence
Defendant was coerced in any way. Thus, the A.R.S. § 13–703(G)(2)
mitigating circumstance does not apply.

Defendant also argues that he “could not reasonably
have foreseen that his conduct in the course of the commission of the
offense for which [he] was convicted would cause, or would create grave
risk of causing, death to another person.” A.R.S. § 13–703(G)(4). This
claim is meritless. Defendant intentionally murdered both victims in
cold blood, drawing his gun and shooting in a confined area where he
knew others were present. Despite close scrutiny, the record discloses
no other nonstatutory mitigating circumstances. See Bible, 175 Ariz. at
606, 858 P.2d at 1209. The trial court correctly noted Defendant's lack
of prior felony convictions as a nonstatutory mitigating factor. See
Brewer, 170 Ariz. at 507, 826 P.2d at 804. This carries little weight,
however, because Defendant previously pleaded guilty in Nevada to two
counts of assault with a deadly weapon, classified there as “gross
misdemeanors.” Defendant originally was charged with felonies in Nevada,
and the seriousness of his conduct compels us to discount this
factor.FN16 See Lavers, 168 Ariz. at 395, 814 P.2d at 352 (prior
nonfelony violent acts may rebut claim of no prior felony record). FN16.
According to the Nevada presentence report, Defendant parked his
motorcycle so it obstructed a truck. The truck owner knocked on
Defendant's door and asked him to move his motorcycle. Defendant
replied, “Just a minute,” then returned and threatened the owner and his
girlfriend with a shotgun. Defendant tried to kick the owner, who
retreated. Defendant then fired the shotgun at the owner's feet,
injuring him.

Defendant claims as a mitigating factor that he was
reared in a dysfunctional family. Nothing in the record substantiates
this claim, however, other than his father's alcoholism and his family's
periodic moves due to military transfers. Defendant failed, moreover, to
demonstrate how his allegedly poor upbringing related in any way to the
murders. See State v. Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986
(1989), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649
(1990).

3. State's cross-appeal

The trial court specifically declined to find as an
aggravating circumstance that Defendant murdered the victims in an
“especially heinous, cruel or depraved manner.” See A.R.S. §
13–703(F)(6). In its cross-appeal, the state urges that the trial court
erred in failing to find this factor and asks that this court
independently make such a finding. Our disposition of the other issues
on appeal, however, makes it unnecessary to reach this issue. See State
v. Milke, 177 Ariz. 118, 129, 865 P.2d 779, 790 (1993) (noting that
reviewing courts should not address issues that are unnecessary to
disposition of an appeal).

4. Propriety of the death sentences

We have independently reviewed the facts establishing
the aggravating and mitigating circumstances. State v. Hill, 174 Ariz.
313, 330, 848 P.2d 1375, 1392 (1993). We have also reviewed the record
for evidence of additional mitigating evidence and have found none. The
state proved the existence of the A.R.S. §§ 13–703(F)(3) and (8)
aggravating circumstances beyond a reasonable doubt. After review of the
entire record, we conclude there are no statutory and no substantial,
nonstatutory mitigating factors. Taken in isolation, Defendant's
substance abuse and alleged impulsive personality are not sufficiently
substantial to call for leniency. The trial court correctly concluded
the aggravating circumstances outweigh the mitigating circumstances. Cf.
Cornell, 179 Ariz. 314, 878 P.2d 1352. A.R.S. § 13–703(E) requires
imposition of the death penalty.

Background: Petitioner sought federal habeas corpus
relief after his state-court convictions for murder and aggravated
assault and death sentence were upheld on direct appeal, 180 Ariz. 53,
881 P.2d 1158. The United States District Court for the District of
Arizona, John M. Roll, J., 2007 WL 3124451, denied petition, and
thereafter, 2008 WL 280879, denied petitioner's motion to alter or amend
judgment. Petitioner appealed.

Holdings: The Court of Appeals, Thomas, Circuit
Judge, held that: (1) state supreme court reasonably applied clearly
established federal law in denying claim that prosecutor committed
misconduct by asking psychologist whether he had considered hypnotizing
or administering amobarbital to petitioner; (2) brief mention of
petitioner's prior misdemeanor did not deprive petitioner of fair trial;
(3) cross-examining lay witness about petitioner's mental state was not
so prejudicial that it rendered trial fundamentally unfair; (4) alleged
prosecutorial misconduct did not rise to level of due process violation
even when considered in the aggregate; (5) petitioner did not fairly
present claims of prosecutorial misconduct to state supreme court; (6)
petitioner did not receive ineffective assistance of counsel; and (7)
petitioner was not entitled to evidentiary hearing on federal habeas
review. Affirmed.

THOMAS, Circuit Judge: Joseph R. Wood III, an Arizona
state prisoner, appeals the district court's denial of his habeas corpus
petition challenging his state convictions for murder and aggravated
assault and the imposition of the death penalty. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.

I

Petitioner Joseph Wood shot and killed his estranged
girlfriend, Debra Dietz, and her father, Eugene Dietz, on August 7, 1989
at a Tucson automotive paint and body shop owned and operated by the
Dietz family. The Arizona Supreme Court described the facts as follows:
Since 1984, Defendant and Debra had maintained a tumultuous relationship
increasingly marred by Defendant's abusive and violent behavior. Eugene
generally disapproved of this relationship but did not actively
interfere. In fact, the Dietz family often included Defendant in dinners
and other activities. Several times, however, Eugene refused to let
Defendant visit Debra during business hours while she was working at the
shop. Defendant disliked Eugene and told him he would “get him back” and
that Eugene would “be sorry.” Debra had rented an apartment that she
shared with Defendant. Because Defendant was seldom employed, Debra
supported him financially. Defendant nevertheless assaulted Debra
periodically. [FN1]. She finally tried to end the relationship after a
fight during the 1989 July 4th weekend. She left her apartment and moved
in with her parents, saying “I don't want any more of this.” After Debra
left, Defendant ransacked and vandalized the apartment. She obtained an
order of protection against Defendant on July 8, 1989. In the following
weeks, however, Defendant repeatedly tried to contact Debra at the shop,
her parents' home, and her apartment. [FN2].

FN1. Debra was often bruised and sometimes wore
sunglasses to hide blackened eyes. A neighbor who heard “thuds and
banging” within Debra's apartment called police on June 30, 1989, after
finding Debra outside and “hysterical.” The responding officer saw cuts
and bruises on Debra. FN2. Defendant left ten messages on Debra's
apartment answering machine on the night of Friday, August 4, 1989. Some
contained threats of harm, such as: “Debbie, I'm sorry I have to do
this. I hope someday somebody will understand when we're not around no
more. I do love you babe. I'm going to take you with me.”

Debra and Eugene drove together to work at the shop
early on Monday morning, August 7, 1989. Defendant phoned the shop three
times that morning. Debra hung up on him once, and Eugene hung up on him
twice. Defendant called again and asked another employee if Debra and
Eugene were at the shop. The employee said that they had temporarily
left but would return soon. Debra and Eugene came back at 8:30 a.m. and
began working in different areas of the shop. Six other employees were
also present that morning. At 8:50 a.m., a Tucson Police officer saw
Defendant driving in a suspicious manner near the shop. The officer
slowed her patrol car and made eye contact with Defendant as he left his
truck and entered the shop. Eugene was on the telephone in an area where
three other employees were working. Defendant waited for Eugene to hang
up, drew a revolver, and approached to within four feet of him. The
other employees shouted for Defendant to put the gun away. Without
saying a word, Defendant fatally shot Eugene once in the chest and then
smiled. When the police officer saw this from her patrol car she
immediately called for more officers. Defendant left the shop, but
quickly returned and again pointed his revolver at the now supine
Eugene. Donald Dietz, an employee and Eugene's seventy-year-old brother,
struggled with Defendant, who then ran to the area where Debra had been
working.

Debra had apparently heard an employee shout that her
father had been shot and was trying to telephone for help when Defendant
grabbed her around the neck from behind and placed his revolver directly
against her chest. Debra struggled and screamed, “No, Joe, don't!”
Another employee heard Defendant say, “I told you I was going to do it,
I have to kill you.” Defendant then called Debra a “bitch” and shot her
twice in the chest. Several police officers were already on the scene
when Defendant left the shop after shooting Debra. Two officers ordered
him to put his hands up. Defendant complied and dropped his weapon, but
then grabbed it and began raising it toward the officers. After again
ordering Defendant to raise his hands, the officers shot Defendant
several times. State v. Wood, 180 Ariz. 53, 881 P.2d 1158, 1165–66
(1994). Wood was arrested and indicted on two counts of first degree
murder and two counts of aggravated assault against the police officers
who subdued him. Id. at 1166.

At trial, Wood conceded his role in the killings, but
argued that they were impulsive acts that were not premeditated. Id.
After a five-day trial, the jury found Wood guilty on all counts. Id. at
1169. Following an aggravation and mitigation hearing, the trial court
sentenced Wood to imprisonment for the assaults and to death for each
murder. Id. at 1165.

In 1996, Wood filed a state petition for
post-conviction review (PCR). The state post-conviction court and the
Arizona Supreme Court denied relief. In 2002, Wood filed a second PCR
petition. The state post-conviction court and Arizona Supreme Court
again denied relief.

In 1998, Wood filed a Petition for Writ of Habeas
Corpus in federal district court, followed by the filing of an Amended
Petition later that year. In 2006, the district court issued an order on
the procedural status of Wood's claims, finding certain claims properly
exhausted and ordering merits briefing on those claims and dismissing
others as procedurally barred. Order Re: Procedural Status of Claims,
Wood v. Schriro, No. CV–98–053–TUC–JMR, 2007 WL 3124451 (D.Ariz. Mar.
21, 2006), ECF No. 63. In 2007, the district court denied Wood's
remaining habeas claims on the merits. Wood v. Schriro, No. CV–98–053–TUC–JMR,
2007 WL 3124451, at *46 (D.Ariz. Oct. 24, 2007).

We review the district court's denial of Wood's
habeas petition de novo and its findings of fact for clear error.
Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.2010). We review the
denial of Wood's request for an evidentiary hearing for an abuse of
discretion. Id. Wood filed his habeas petition after April 24, 1996,
thus the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
applies. Woodford v. Garceau, 538 U.S. 202, 204–07, 123 S.Ct. 1398, 155
L.Ed.2d 363 (2003). To obtain relief under AEDPA, Wood must show that
the state court's decision (1) “was contrary to” clearly established
federal law as determined by the Supreme Court, (2) “involved an
unreasonable application of” such law, or (3) “was based on an
unreasonable determination of the facts” in light of the record before
the state court. Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770,
785, 178 L.Ed.2d 624 (2011) (quoting 28 U.S.C. § 2254(d)).

II

The district court correctly determined that Wood was
not entitled to habeas relief on his claims that the prosecutor
committed prejudicial misconduct in violation of his rights to due
process and a fair trial. The district court denied five claims on the
merits and concluded that four claims were procedurally barred.

A

The district court was correct in its denial of
Wood's prosecutorial misconduct claims on the merits. Wood argues that
the prosecutor committed prejudicial misconduct by: (1) cross-examining
a psychologist about whether another doctor had considered hypnotizing
or administering amobarbital to Wood; (2) eliciting testimony about a
prior arrest, his employment history, and his personal relationships
with previous girlfriends and with Ms. Dietz; (3) cross-examining a
psychologist about Wood's mental state; (4) cross-examining a lay
witness about Wood's mental state; and (5) committing cumulative error.

A prosecutor's actions constitute misconduct if they
“so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168,
181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).
The “appropriate standard of review for such a claim on writ of habeas
corpus is ‘the narrow one of due process, and not the broad exercise of
supervisory power.’ ” Id. (quoting Donnelly, 416 U.S. at 642, 94 S.Ct.
1868). On habeas review, constitutional errors of the “trial type,”
including prosecutorial misconduct, warrant relief only if they “had
substantial and injurious effect or influence in determining the jury's
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S.Ct. 1710,
123 L.Ed.2d 353 (1993) (internal quotation marks omitted).

The district court properly denied Wood's claim that
the prosecutor committed misconduct by asking Dr. Allender, a
psychologist called as an expert witness by the defense, whether he had
considered hypnotizing or administering amobarbital to Wood. Wood, 2007
WL 3124451, at *6–8. On direct examination, Wood's counsel asked Dr.
Allender questions about Wood's alleged inability to remember the
shootings. On cross-examination, the prosecutor probed Dr. Allender's
understanding of Wood's alleged memory loss. Wood alleges the prosecutor
committed misconduct by asking the following line of questions:

Q: Didn't Dr. Morris [another psychologist who
examined Wood] suggest that hypnosis or amobarbital might be ideal to
discover whether [Wood] was malingering? A: He suggested that those
might be techniques. Q: With hypnosis, you place them under hypnosis in
order to find out what the truth of the matter was? A: What the theory
would be is if it is an unconscious process, that you can probably do
hypnosis or use the sodium amobarbital to get past the conscious defense
or unconscious defense mechanisms. Q: So you didn't, did you attempt,
did you request a hypnosis evaluation? A: I didn't because I didn't, I'm
not as convinced about those techniques as Dr. Morris is. Q: Amobarbital,
is that a truth serum? A: That is what they call it, that is what people
have called it along the way.

The Arizona Supreme Court denied this claim on direct
review. Wood, 881 P.2d at 1172–73. In doing so, the Arizona Supreme
Court reasonably applied clearly established law. Although Wood argues
that the evidence obtained by hypnosis or sodium amobarbital would have
been scientifically unreliable, the Arizona Supreme Court acknowledged
that “courts generally exclude testimony induced or ‘refreshed’ by drugs
or hypnosis” but determined that the prosecutor's questions about
amobarbital and hypnosis in Wood's case were “within the wide latitude
permitted on cross-examination” because they were “not intended to
impugn [Wood] but to test the basis and credibility of Dr. Allender's
opinions concerning whether [Wood] was faking his asserted memory loss
at the time of the murders.” Id. at 1172–73. Wood also contends that Dr.
Allender appeared unqualified because he did not consider this potential
evidence, but the record belies this assertion. Dr. Allender testified
that he did not perform hypnosis or administer amobarbital because he
was not convinced about the reliability of these tests. By questioning
the reliability of the tests, Dr. Allender demonstrated his credibility
as an expert by showing that a competent psychologist questions the use
of methods and practices that do not provide credible results. The
prosecutor's questions did not “so infect[ ] the trial with unfairness
as to make the resulting conviction a denial of due process.” Darden,
477 U.S. at 181, 106 S.Ct. 2464.

The district court also correctly denied Wood's
claims that the prosecutor committed misconduct by eliciting testimony
about Wood's prior arrest, employment history, personal relationships
with previous girlfriends, and self-centered relationship with Ms.
Dietz. Wood, 2007 WL 3124451, at *8–11. The Arizona Supreme Court
addressed the prior arrest and employment history claims. Wood, 881 P.2d
at 1170–72. However, it did not address the claims about Wood's prior
relationships with other girlfriends or his allegedly self-centered
relationship with Ms. Dietz, so we must review these two claims de novo.
See Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir.2011).

The Arizona Supreme Court reasonably determined that
the prosecutor's passing reference to Wood's prior arrest on
cross-examination did not violate Wood's right to due process. On direct
examination, Dr. Allender testified that he reviewed police reports from
the Tucson and Las Vegas police departments. The prosecutor then
followed up on cross-examination by asking questions about these
reports: Q: Directing your attention, you said you had some Las Vegas
reports? A: Yes. Q: You had police reports from 1979? A: I believe I
did. I would have to flip through and look for it if you want me to.
[The Court]: Maybe if you ask— Q: Do you recall in 1979 an incident when
[Wood] was arrested for some criminal activity? A: I think I found a
report from '79 from Las Vegas.

The Arizona Supreme Court determined that this line
of questioning did not deprive Wood of a fair trial because “the
prosecutor simply asked Dr. Allender to elaborate on the reports he
first mentioned on direct examination. The jury never learned the
details of the conduct underlying Defendant's Las Vegas arrest.” Wood,
881 P.2d at 1172. The court concluded that “[b]ecause Dr. Allender
relied on the reports in forming his opinion of Defendant, the
prosecutor's cross-examination was proper.” Id. This brief mention of
Wood's prior misdemeanor did not deprive him of a fair trial. The
prosecutor referred to the misdemeanor only in passing during the
examination and he did not mention it in his closing argument. The trial
court had granted a motion in limine excluding the introduction of this
prior misdemeanor into evidence, and the Arizona Supreme Court
determined that Wood would have been entitled to a limiting instruction
that references to the police reports were admissible only to show the
basis of Dr. Allender's opinions had he objected. Id. at 1172. But to
the extent Wood argues this merits reversal, “it is not the province of
a federal habeas court to reexamine state-court determinations on
state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct.
475, 116 L.Ed.2d 385 (1991).

The prosecutor's references to Wood's employment
history, prior relationships, and self-centered relationship with Ms.
Dietz also do not rise to the level of a due process violation. The
Arizona Supreme Court properly concluded that the challenged testimony
regarding Wood's employment history was merely “perfunctory and
undetailed” such that “its admission d[id] not rise to the level of
fundamental error.” Wood, 881 P.2d at 1170. Similarly, the prosecutor's
questions that elicited Wood's former girlfriend's testimony that Wood
was unfaithful and Margaret Dietz's testimony that Wood was selfish in
his relationship with Debra Dietz were also perfunctory and undetailed
and they did not violate Wood's due process rights.

The prosecutor did not commit prejudicial misconduct
by cross-examining Dr. Allender about Wood's mental state. Wood alleges
that the prosecutor committed misconduct by improperly raising the issue
of Wood's mental state at the time of the incident in the following line
of questions: Q. Let me ask you, sir, I don't know, you are talking
about impulsivity here today. Of the defendant. You said the defendant
has a trait of acting impulsively? A. [Dr. Allender] That's my belief,
yes. Q. Under the facts of this case as you understand them, sir, how
would a person who was not impulsive have committed this offense? A. Had
it been thought through and premeditated, then I would say it was not
impulsive. I see impulsivity as acting without forethought. Q. Well, how
would a non-impulsive person have committed this offense? A. I think
they would have planned it out. Q. So what you are saying is that this
wasn't planned out, from what you know about the facts of this case it
wasn't planned? A. It is hard for me to say whether it is planned. Well,
I think Mr. Wood behaved in a general sequence but given his lack of
recall for the specific offense, it is hard for me to know whether this
was planned out or not.

The district court correctly concluded that this line
of cross-examination did not warrant the grant of habeas relief. Even if
the prosecutor's questions arguably touched on Wood's state of mind at
the time of the crimes, Dr. Allender's answers did not. He merely
testified that he was not certain if Wood had planned the shootings.
This testimony did not conflict with Wood's impulsivity theory and did
not deprive Wood of a fair trial.

The prosecutor did not commit prejudicial misconduct
by cross-examining Mona Donovan, a mutual friend of Wood and Ms. Dietz,
about Wood's mental state. On direct examination, Donovan testified that
Wood sometimes acted impulsively. On cross-examination, the prosecutor
asked Donovan about her pre-trial statement that Wood's anger increased
as a situation worsened. Wood argues that the prosecutor committed
misconduct by asking the following questions about an incident at Ms.
Dietz's apartment: Q: When [Wood] trashed the apartment, he trashed the
apartment to get some of his possessions and avenge his anger? I was
reading the question [defense counsel] asked you on page 11, do you know
why he broke in? Answer, to get some of his possessions, to avenge some
of his anger by breaking possessions of [Ms. Dietz's]. Do you recall
that? A: Yes. Q: In fact I think there was a telephonic interview that
you gave to a legal assistant in my office on the 9th of October, do you
recall when you were asked why he did that, indicating that he probably,
he was probably very angry and did it out of spite? A: I don't recall
the telephone conversation. Q: Does that sound like something you would
say? A: I really don't know, I don't remember. Q: Would you agree with
that statement? A: That he would do it out of spite? The Court: Let's
quit asking this witness, the witness why this defendant did or didn't
know why he did something, there's no way she could know it. Q: You
indicated did you not that he avenged some of his anger by breaking and
destroying some possessions of [Ms. Dietz's]? A: Yes. The Court: Did you
hear what I just said, quit asking her about his mental state. Quit
asking her about his mental state. Q: Well, when you say the word
avenge, what do you mean by the word avenge? Do you mean to get revenge?
A: Yeah, I guess so.

Wood contends the prosecutor committed misconduct by
asking Ms. Donovan to speculate about Wood's mental state after the
trial judge ruled that the question was improper. Because the Arizona
Supreme Court did not address this claim on the merits, we review it de
novo. Stanley, 633 F.3d at 860. The district court correctly concluded
that the questioning did not violate Wood's right to a fair trial.
Although the prosecutor should have dropped this line of questioning
after the trial judge admonished him once, the improper follow-up
question about Wood's mental state during an event unrelated to the
killings was not so prejudicial that it rendered the trial fundamentally
unfair. The fact that Wood had vandalized Ms. Dietz's apartment had
already been established. Additionally, the information elicited by the
prosecutor was consistent with the defense theory that Wood was
impulsive and had anger-control problems. Donovan's testimony regarding
Wood's motives in vandalizing the apartment was only tangentially
related to the issue of Wood's state of mind at the time of the
shootings.

Finally, the cumulative impact of each of the
incidents of alleged prosecutorial misconduct did not violate Wood's
right to a fair trial. Even when separately alleged incidents of
prosecutorial misconduct do not independently rise to the level of
reversible error, “[t]he cumulative effect of multiple errors can
violate due process.” United States v. Nobari, 574 F.3d 1065, 1082 (9th
Cir.2009) (internal quotation marks omitted). However, Wood's
allegations of prosecutorial misconduct do not rise to the level of a
due process violation even when considered in the aggregate.

B

Wood raises additional prosecutorial misconduct
claims that the district court dismissed as procedurally defaulted. Wood
claims that the prosecutor committed prejudicial misconduct by: (1)
eliciting evidence that Wood was incarcerated while awaiting trial; (2)
eliciting false testimony regarding the position of the bullets in the
gun's cylinder; (3) impugning defense counsel's motives; and (4)
eliciting inflammatory victim impact evidence. We affirm the district
court's dismissal of these claims because they were not fairly presented
to the state courts. To fairly present a claim in state court, a
petitioner must describe the operative facts supporting that claim.
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008); see also Anderson v.
Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v.
Connor, 404 U.S. 270, 275–78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Wood
concedes that the specific facts underlying these claims were not
presented on direct appeal, but he argues that they merely constitute
additional particular instances of prosecutorial misconduct that do not
fundamentally alter the claim raised on direct appeal. However, a
general allegation that a prosecutor engaged in pervasive misconduct is
not sufficient to alert a state court to separate specific instances of
purported misconduct. See Picard, 404 U.S. at 275–78, 92 S.Ct. 509.

In the alternative, Wood argues that the first and
last of these claims—that the prosecutor committed misconduct by
eliciting evidence that Wood was incarcerated while awaiting trial and
eliciting inflammatory victim impact evidence—were not defaulted because
they were incorporated by reference to his state PCR petition in his
petition for review. The district court properly determined that these
claims were not fairly presented to the Arizona Supreme Court. As the
Supreme Court has explained: [O]rdinarily, a state prisoner does not
“fairly present” a claim to a state court if that court must read beyond
a petition or a brief (or a similar document) that does not alert it to
the presence of a federal claim in order to find material, such as the
lower court opinion in the case, that does so. Baldwin v. Reese, 541
U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004).

Additionally, “a habeas petitioner who has failed to
meet the State's procedural requirements for presenting his federal
claims has deprived the state courts of an opportunity to address those
claims in the first instance.” Coleman v. Thompson, 501 U.S. 722, 732,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Arizona law requires that a
petitioner present the issues and material facts supporting a claim in a
petition for review and prohibits raising an issue through incorporation
of any document by reference, except for appendices. Ariz. R.Crim. P.
32.9(c)(1)(iv). Wood failed to comply with these requirements and
thereby failed to fairly present these claims to the Arizona Supreme
Court.

Finally, Wood argues that even if his false testimony
claim is procedurally defaulted, the district court erred by not
reaching the merits of this claim because failure to do so would cause a
fundamental miscarriage of justice. To establish a “fundamental
miscarriage of justice,” Wood must show that “a constitutional violation
has probably resulted in the conviction of one who is actually
innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d
808 (1995) (internal quotation marks omitted). He must demonstrate that
“it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Id. As a result, the
Supreme Court has noted that this exception “would remain ‘rare’ and
would only be applied in the ‘extraordinary case.’ ” Id. at 321, 115
S.Ct. 851.

Wood does not meet this burden because considerable
evidence of his premeditation was introduced at trial. The morning of
the crime, Wood called the shop to determine whether Debra and Eugene
Dietz were there and, although he regularly carried a gun with him, he
brought more ammunition to the shop than was his habit. Wood, 881 P.2d
at 1169. He waited to shoot Eugene until after Eugene had hung up the
telephone, actively searched for Ms. Dietz, and held her before shooting
her, stating, “I told you I was going to do it, I have to kill you.” Id.
Evidence was also introduced detailing Wood's history of violence
against Ms. Dietz, as were taped messages in which Wood threatened her
life. Id. at 1165 nn. 12. Given this evidence against Wood, it is not
more likely than not that no reasonable juror would have found him
guilty of premeditated murder beyond a reasonable doubt.

III

The district court correctly determined that Wood was
not entitled to habeas relief on his claims that he was denied effective
assistance of counsel at trial, sentencing, and on appeal. To establish
ineffective assistance of counsel, a petitioner must show that counsel's
performance was deficient and that he was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Deficient performance is established when “counsel's
representation fell below an objective standard of reasonableness.” Id.
at 688, 104 S.Ct. 2052. In determining deficiency, “a court must indulge
a strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689, 104 S.Ct.
2052 (internal quotation marks omitted). To establish prejudice, Wood
must show “a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Under
AEDPA review, “[t]he pivotal question is whether the state court's
application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel's performance fell below
Strickland's standard.” Richter, 131 S.Ct. at 785.

Ineffective assistance of counsel at sentencing
claims are also assessed according to the Strickland standard. 466 U.S.
at 695, 104 S.Ct. 2052. The test for prejudice at sentencing in a
capital case is whether “there is a reasonable probability that, absent
the errors, the sentencer ... would have concluded that the balance of
aggravating and mitigating circumstances did not warrant death.” Id.
AEDPA's “objectively unreasonable” standard also applies to ineffective
assistance of counsel at sentencing claims that are considered and
denied by a state PCR court. See Bell v. Cone, 535 U.S. 685, 698–99, 122
S.Ct. 1843, 152 L.Ed.2d 914 (2002).

A

The district court correctly dismissed Wood's claims
that his trial counsel's performance was constitutionally ineffective.
He contends that his trial counsel performed deficiently by inadequately
investigating and preparing his mental health defense and failing to
object to alleged instances of prosecutorial misconduct.

Wood's counsel's investigation and preparation of
Wood's mental health defense was not constitutionally ineffective. At
trial, Wood conceded his role in the killings but argued that they were
not premeditated because he had acted impulsively. Wood, 881 P.2d at
1166. Wood alleges that his counsel rendered ineffective assistance in
asserting an impulsivity defense by failing to provide Dr. Allender with
sufficient background material to testify effectively about his mental
health at trial. The record indicates that counsel adequately prepared
Dr. Allender for his testimony. At counsel's request, Dr. Allender
thoroughly examined Wood over the course of two days. During these
examinations, Dr. Allender administered several psychological tests and
discussed Wood's drug and alcohol abuse, hospitalization
history—including his history of head injuries—and the incident itself.
Dr. Allender also reviewed psychological evaluations by Dr. Boyer, Dr.
Morris, and Dr. Morenz, the three other mental health experts who also
examined Wood. Each of these evaluations discussed Wood's personal
history of alcohol abuse, his suicide attempts, and his head injuries.
Given this background preparation, Dr. Allender was prepared to testify
about Wood's mental state.

Furthermore, Wood has not demonstrated prejudice.
Counsel presented an impulsivity defense and Wood has not demonstrated a
reasonable probability that a different or more comprehensive
presentation of that defense would have resulted in a different verdict,
especially in the face of the overwhelming evidence of premeditation.
See Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir.1995). Thus, the
PCR court did not unreasonably apply Strickland when it rejected this
claim. The district court properly rejected Wood's claims that his trial
counsel was constitutionally ineffective for failing to object to the
alleged incidents of prosecutorial misconduct. The PCR court did not
unreasonably apply Strickland in determining that Wood failed to
demonstrate prejudice. Many of counsel's decisions not to object at
trial were consistent with his presentation of an impulsivity defense.
For example, evidence elicited by the prosecutor concerning instances of
Wood's erratic behavior was consistent with the strategy of offering
Wood's impulsive personality as a defense to the element of
premeditation. See Wood, 881 P.2d at 1170. Additionally, the jury's
finding of premeditation was supported by strong evidence at trial. See
Wood, 881 P.2d at 1169. In light of this evidence, Wood has not
demonstrated a reasonable probability that the result of the trial would
have been different had defense counsel objected to the alleged
instances of prosecutorial misconduct.

B

The district court also properly dismissed as
procedurally defaulted Wood's claim that his trial counsel was
constitutionally ineffective for failing to impeach three witnesses.
Wood claims that his trial counsel rendered ineffective assistance by
failing to impeach Anita Sueme, Eric Thompson, and Donald Dietz for
allegedly giving prior statements inconsistent with their trial
testimony. We affirm the district court's dismissal of this claim
because it was not fairly presented to the state courts. To fairly
present a claim in state court, a petitioner must describe the operative
facts supporting that claim. Davis, 511 F.3d at 1009; see also Anderson,
459 U.S. at 6, 103 S.Ct. 276; Picard, 404 U.S. at 275–78, 92 S.Ct. 509.
Wood concedes that he did not raise these particular claims on direct
appeal, but as with some of his claims of prosecutorial misconduct, see
supra Section II.B, he argues that they merely constitute additional
particular instances of ineffective assistance of counsel that do not
fundamentally alter the claim raised on direct appeal. However, as with
the claims of prosecutorial conduct discussed previously, a general
allegation of ineffective assistance of counsel is not sufficient to
alert a state court to separate specific instances of ineffective
assistance. See Picard, 404 U.S. at 275–78, 92 S.Ct. 509.

C

The district court did not err in denying Wood's
claim that his counsel failed to effectively assist him at sentencing.
Specifically, Wood contends that his counsel failed to prepare and
present evidence of his diminished capacity, failed to prepare him for
his pre-sentence interview, and failed to assert his military service as
a mitigating factor.

Wood argues that his counsel failed to properly
marshal evidence of Wood's personality changes following head injuries
and his social background, including his alcoholism and mental illness.
However, information regarding each of these issues was put before the
trial court. Evidence of Wood's reported head injuries was presented
through Dr. Allender's testimony during the guilt stage of the trial.
Dr. Allender testified that Wood's head injuries did not cause a
significant behavioral change. Wood's head injuries were also discussed
in the other mental health experts' Rule 11 reports. Counsel was not
ineffective for failing to present additional evidence and argument at
sentencing about Wood's head injuries because it had already been
presented at trial. See Bell, 535 U.S. at 699–700, 122 S.Ct. 1843.
Additional evidence of Wood's social background, including his history
of substance abuse, was also presented at sentencing by Dr. Breslow, a
psychiatric chemical dependency expert. Dr. Breslow reviewed Wood's
medical and military records, statements from trial witnesses, and the
mental-health evaluations prepared by Dr. Morris, Dr. Morenz, and Dr.
Allender. He testified that Wood suffers from alcohol, stimulant,
amphetamine, and cocaine dependencies. He explained that Wood's
substance abuse had a profound effect on Wood's personality by impairing
his judgment, making him more impulsive, and likely impacting his
behavior at the time of the killings. Thus, counsel developed and
presented this mitigating evidence in detail and the PCR court
reasonably rejected Wood's claim.

Wood also argues that his counsel never requested or
acquired an in depth neurological evaluation. However, the PCR court
found that Wood's counsel requested a brain mapping test, on Dr.
Breslow's recommendation, although that request was denied by the trial
court. Counsel attempted to acquire the recommended evaluation and his
failure to obtain it does not render his performance constitutionally
ineffective.

The district court properly concluded that the PCR
court reasonably denied Wood's ineffective assistance of counsel claim
that his counsel failed to prepare him for his pre-sentence interview.
Wood argues that he was not adequately prepared because he did not
express remorse for his actions in his interview with the probation
officer. But Wood included expressions of remorse in a letter delivered
by counsel to the sentencing judge. The record also indicates that the
court did not consider Wood's lack of remorse in the presentence report
as a factor in his sentence. Therefore, Wood does not demonstrate
prejudice from counsel's performance because he “has failed to show that
the information relative to remorse contained in the pre-sentence report
had any effect on the sentencing court's decision to impose the death
penalty.” Clark v. Ricketts, 958 F.2d 851, 857–58 (9th Cir.1991).

The district court properly concluded that the PCR
court reasonably denied Wood's ineffective assistance of counsel claim
on the ground that his counsel did not explicitly present his military
service as a mitigating factor in sentencing. Counsel presented Wood's
military records for consideration by the trial court and the sentencing
judge is presumed to have known and applied the law correctly, which
meant giving consideration to this mitigating evidence.

The district court did not err in concluding that the
PCR court reasonably denied Wood's claim that the cumulative effect of
trial counsel's deficiencies entitles him to a new trial and sentencing
proceeding. “Separate errors by counsel at trial and at sentencing
should be analyzed together to see whether their cumulative effect
deprived the defendant of his right to effective assistance.” Sanders v.
Ryder, 342 F.3d 991, 1001 (9th Cir.2003) (citations omitted). Wood's
assertion of cumulative error fails because his individual claims of his
counsel's errors at trial and sentencing are not supportable, and they
do not entitle him to relief even when aggregated.

D

The district court correctly denied Wood's claim that
he was denied effective assistance of counsel because one of his
appellate attorneys had an alleged conflict of interest, but did not
withdraw from representation. Wood did not raise this particular
ineffective assistance claim on direct appeal or in his PCR proceedings,
so the district court dismissed it as unexhausted and procedurally
defaulted.

IV

The district court properly denied Wood's claim that
the state trial court erred by denying Wood's request for funding to
obtain a neurometric brain mapping test. The district court dismissed
this claim as procedurally defaulted because Wood did not fairly present
it to the state courts. Wood contends that he properly exhausted this
claim by presenting it to the Arizona Supreme Court on direct appeal and
by presenting it in post-conviction proceedings. He also contends that
the Arizona Supreme Court necessarily considered this claim during its
independent sentencing review. Wood did not exhaust his claim on direct
review. Wood discussed the denial of the funding request only in his
description of the trial court's proceedings; he did not argue that the
denial of the funding request violated his constitutional rights. This
passing reference was not sufficient to fairly alert the Arizona Supreme
Court to this claim. See Castillo v. McFadden, 399 F.3d 993, 1002–03
(9th Cir.2005).

Wood also did not properly exhaust this claim in
post-conviction proceedings. Although Wood raised this claim in the PCR
petition, he did not include it in his petition for review to the
Arizona Supreme Court. Wood argues that he incorporated his PCR petition
by reference into his petition for review before the Arizona Supreme
Court. Again, as discussed in Part II.B of this opinion, this
incorporation by reference was not a sufficient method of fairly
presenting this claim to the Arizona Supreme Court. See Baldwin, 541
U.S. at 32, 124 S.Ct. 1347.

The Arizona Supreme Court's independent sentencing
review did not serve to exhaust this claim. In capital cases, the
Arizona Supreme Court independently reviews the facts that established
the aggravating and mitigating factors in order to justify the sentence
imposed. Correll v. Ryan, 539 F.3d 938, 951 (9th Cir.2008). However,
this independent review does not necessarily exhaust all claims of
constitutional error. See Moormann v. Schriro, 426 F.3d 1044,
1057–58(9th Cir.2005). We agree with the district court that the Arizona
Supreme Court would not necessarily consider whether the trial court's
denial of a funding request limited Wood's ability to present mitigating
evidence.

V

Finally, the district court did not abuse its
discretion by denying Wood's request for an evidentiary hearing,
evidentiary development, and expansion of the record. During PCR
proceedings, Wood requested, but did not receive, an evidentiary hearing
on his ineffective assistance of counsel claims. The district court
concluded that Wood may have diligently attempted to develop the factual
basis for his claims, but the district court still denied these requests
under 28 U.S.C. § 2254(e)(2) after determining that Wood had not alleged
the existence of disputed facts which, if true, would entitle him to
relief.

Wood contends that he was prejudiced by counsel's
deficient handling of mental health evidence at the guilt and sentencing
stages of trial. However, the record details counsel's performance,
including his effort to investigate, prepare, and present a guilt-stage
defense based on Wood's character trait of impulsivity. Therefore, Wood
is not entitled to an evidentiary hearing because his ineffective
assistance of counsel claims can be “resolved by reference to the state
court record.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.1998)
(citations omitted). Furthermore, Wood is not entitled to an evidentiary
hearing or additional discovery in federal court because this
ineffective assistance of counsel claim is governed by 28 U.S.C. §
2254(d)(1), as it was adjudicated on the merits in the PCR proceedings.
Review of such claims “is limited to the record that was before the
state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

VI

For these reasons, we therefore affirm the district
court's denial of Wood's habeas petition and request for an evidentiary
hearing. AFFIRMED.

Wood v. Ryan, ___ F.3d ___ (9th Cir. 2014). (Sec. 1983)

Background: Death row inmate filed § 1983 action
seeking information from state department of corrections regarding
method of his execution. The United States District Court for the
District of Arizona, Neil V. Wake, J., 2014 WL 3385115, denied inmate's
motion for preliminary injunction, and he appealed.

Holding: The Court of Appeals, Thomas, Circuit Judge,
held that preliminary injunction delaying inmate's execution until he
received information was warranted. Reversed. Bybee, Circuit Judge,
dissented and filed opinion.

THOMAS, Circuit Judge:

Joseph Wood (“Wood”) is scheduled to die by lethal
injection on July 23, 2014. Wood seeks information from the Arizona
Department of Corrections (“Department”) regarding the method of his
execution, which the Department has not provided. Wood argues that, by
withholding this information, the Department has violated his First
Amendment rights. He seeks a preliminary injunction delaying his
execution until he receives the information. The district court denied
Wood's motion. Although we do not reach the ultimate merits of the case,
we conclude that Wood has presented serious questions going to the
merits of his claim, and that the balance of hardships tips sharply in
his favor. We therefore reverse the district court's denial of the
motion for a preliminary injunction.

* * *

On April 30, the head of Arizona's Federal Public
Defender's Capital Habeas Unit, Dale Baich, sent the Department the
first of four letters inquiring about the method the Department would
use to execute Wood. He asked first about the two-drug protocol,
inquiring about how the Department chose the amounts to be used of both
drugs, the name and manufacturer of both drugs, the source of the drugs,
and the credentials of those who would administer them. He requested
similar information concerning the Pentobarbital protocol and also asked
how long the Department would plan to look for that drug.

The Department responded on May 6, indicating that it
would use the new two-drug protocol on Wood if the warrant were granted,
and that it had chosen the amounts of both drugs based on declarations
and sworn testimony in “the Ohio Execution Protocol litigation.” It also
indicated that the drugs would be domestically obtained and
FDA-approved, although it would not release other identifying
information, citing Arizona's confidentiality law, Ariz.Rev.Stat. §
13–757. It noted that the qualifications of the IV team had not changed
since the Department updated its protocol in 2012 to “include assurances
of the” team's qualifications. Finally, the Department added that it
will “continue to look for a source of pentobarbital indefinitely.”

Baich responded on May 9. He again requested the drug
manufacturer information, along with lot numbers and expiration dates
for the two drugs. He also asked for copies of the actual documents in
the Ohio litigation upon which the Department relied in devising its new
protocol. Baich asked for clarification of the Department's claims that
it would use the new two-drug protocol, but also continue to search for
Pentobarbital. Finally, given the recent problematic execution in
Oklahoma and past criticism of the Department by the district court in
Arizona, Baich asked for the qualifications of the medical professionals
who would perform the execution.

* * *

Because we conclude that Wood has raised serious
questions as to the merits of his First Amendment claim; that the
balance of equities tips sharply in his favor; that he will face
irreparable harm if the injunction is not granted; and that the
injunction is in the public interest; we conclude that the district
court abused its discretion in denying Wood's preliminary injunction
request. We do not decide with certainty that a First Amendment right
exists to the information Wood seeks, nor do we resolve the merits of
the Plaintiffs' underlying § 1983 claim. We do, however, reverse the
district court's denial of Wood's preliminary injunction motion. We
grant a conditional preliminary injunction, staying Wood's execution
until the State of Arizona has provided him with (a) the name and
provenance of the drugs to be used in the execution and (b) the
qualifications of the medical personnel, subject to the restriction that
the information provided will not give the means by which the specific
individuals can be identified. Once he has received that information,
the injunction shall be discharged without more and the execution may
proceed. REVERSED.

BYBEE, Circuit Judge, dissenting:

Arizona intends to execute Joseph R. Wood III on July
23, 2014. On the eve of his execution, Wood asserts a generalized First
Amendment right of public access to information in the government's
possession regarding the State's supplier of lethal drugs, its execution
personnel, and the manner in which the State developed its
lethal-injection protocol. Wood asks this court to stay his execution
pending the resolution of his request for information. The majority not
only finds that Wood's novel First Amendment argument will likely
prevail, but also that he is entitled to a stay of his execution until
the State complies. Both are unprecedented.

The majority's newfound right of access is a dramatic
extension of anything that we or the Supreme Court have previously
recognized, and it is in direct conflict with a very recent decision of
the Eleventh Circuit, Wellons v. Comm'r, Ga. Dep't of Corr., No.
14–12663–P, 2014 WL 2748316, ––– F.3d –––– (11th Cir. June 17, 2014),
and a recent decision of the Georgia Supreme Court, Owens v. Hill, 758
S.E.2d 794 (Ga.2014). The remedy is equally novel. Even if there were a
First Amendment right of access, Wood would have no more right to the
information than any other member of the public. It is unthinkable that
if anyone else had brought this suit we would stop a lawful execution
until the State yielded the information. The majority has charted a new
course, one I cannot follow. I respectfully dissent.

* * *

VII

The decision to inflict the death penalty is a grave
and solemn one that deserves the most careful consideration of the
public, the elected branches of government, and the courts. We must be
cognizant that a life is at stake. But we cannot conflate the invocation
of a constitutional right belonging to the public at-large—such as the
First Amendment right of public access to certain proceedings and
documents—with a policy judgment about if and when the death penalty
ought to be imposed. In so doing, we usurp the authority of the Arizona
legislature and disregard the instructions of the Supreme Court. The
district court did not abuse its discretion when it denied Wood's
request for a preliminary injunction. I would affirm the district
court's judgment. I respectfully dissent.

* * *

FN11. The majority thinks that exposing the names of
the manufacturers of drugs used in lethal injections is especially
important in light of the “seismic shift in the lethal injection world
in the last five years” and the “flawed executions this year” involving
the drugs at issue here. Maj. Op. at 19–20. But the “seismic shift” and
“flawed executions” have been caused in part by past disclosures of the
manufacturers of the drugs used in lethal injections that have made the
drugs difficult or impossible to obtain. As the majority points out,
“[s]tates are now seeking new types and combinations of drugs” because
thiopental and pentobarbital are no longer readily available. Maj. Op.
at 20. The majority identifies a policy development it deems
undesirable—the need to use different and possibly less effective drugs
to carry out lethal injections—and then interprets the First Amendment
in a novel manner in order to exacerbate rather than ameliorate the
problem.